Category: Constitutional Law

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FAN 199.7 (First Amendment News) ACLU Targets Panhandling Laws Across the Nation

The sampling of  the  stories listed below reveals that the American Civil Liberties Unions and its various chapters are engaged in an all out assault on panhandling laws across the nation. While commercial speech has long been given First Amendment protection, life-sustaining speech (e.g. begging) has not received anywhere the same kind of constitutional attention . . . until now. 

  1. ACLU: Panhandling ordinances in three Iowa cities are unconstitutional, DesMoinesRegister
  2. New Mexico ACLU targets panhandling laws, Santa Fe New Mexican
  3. ACLU of Iowa targets panhandling ordinances, Sioux City Journal
  4. ACLU demands cities scrap panhandling ordinances, WAND
  5. ACLU challenging panhandling laws in northern Colorado, The Denver Channel
  6. ACLU of Vermont asks towns to repeal anti-panhandling laws, San Francisco Chronicle
  7. ACLU challenges Rockford, state panhandling ordinancesWIFR (Chicago)
  8. Groups challenging Illinois panhandling ordinances, Chicago Sun-Times
  9. ACLU files lawsuit against City of Greensboro over panhandling, myfox8.com (North Carolina)

→ See also 

Related — Clash within ACLU over First Amendment defense of NRA

It is a trusism: any organization that defends robust free-speech freedoms must be prepared for some dissension in its ranks. And any group with such policy must stand ready to receive criticisms of its reasons for defending any given form of speech or for not defending it. So it is, and has long been, with the American Civil Liberies Union.

A recent FAN post was titled “ACLU’s David Cole defends NRA’s political speech rights” (see also Matt Ford’s “Andrew Cuomo’s Trumpian War on the NRA,” The New Republic, Aug. 28, 2018).

Fate being what it is, there is dissent in the ACLU big tent. A story in Slate by Mark Joseph Stern provides some backdrop behind the story of the national ACLU’s defense of the NRA’s First Amendment claims and some of the responses to it:

“Shortly before the American Civil Liberties Union filed a brief in support of the National Rifle Association on Friday, David Cole, the ACLU’s national legal director, sent out a short email to staff. Cole explained that he felt that New York Democratic Gov. Andrew Cuomo had ‘explicitly target[ed] the NRA’ based on its “constitutionally protected political advocacy” by advising banks and insurers not to do business with the pro-gun group. ‘If the state can penalize gun promotion advocacy groups by threatening their service providers,’ Cole continued, “it can do the same to other groups”—including Black Lives Matter. Thus, the ACLU had decided to urge the courts to ‘carefully scrutinize’ whether Cuomo has tried to unconstitutionally punish the NRA based on ‘hostility to [its] viewpoint.'”

“Within hours, the organizationwide listserv had lit up. Staffers at both the national office and state affiliates wrote back to register their frustration with Cole’s decision. The ACLU of New York sent out a statement on Monday explaining why it had declined to support the national office’s position. Some attorneys vigorously defended the group’s brief; others cautiously endorsed it, while complaining that its authors had failed to seek input from other stakeholders before committing to a contentious stance. Privately, some litigators fumed, concerned that the organization had needlessly tarnished its reputation by devoting limited resources to help the NRA, a formidable lobbying group with the means to defend itself.”

_______________Unrelated — Floyd Abrams in the News __________________

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FAN 199.6 (First Amendment News) ACLU’s David Cole defends NRA’s political speech rights

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If [Gov.] Cuomo can [target] the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. — David Cole

David Cole

Over at the natioanl ACLU’s website there is a piece by David Cole, the group’s legal director. The piece is titled “New York State Can’t Be Allowed to Stifle the NRA’s Political Speech.” Here are a few excerpts from the piece:

“[I]n a lawsuit the NRA filed against [N.Y. Gov. Andrew] Cuomo this spring, the organization contends that he did more than criticize it. The NRA alleges that Cuomo and top members of his administration abused their regulatory authority over financial institutions to threaten New York banks and insurers that associate with the NRA or other “gun promotion” groups, and that those threats have jeopardized the NRA’s access to basic insurance and banking services in New York.”

“In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.”

“The state has asked the court to dismiss the case without even permitting discovery into the administration’s actions. Our brief supports the NRA’s right to discovery on its First Amendment claims. To be clear, the ACLU does not oppose reasonable restrictions on guns (you can read more about that here). Our position in this case has nothing to do with our opinions on the NRA’s policies — it’s about the First Amendment rights of all organizations to engage in political advocacy without fear that the state will use its regulatory authority to penalize them for doing so.”

“The NRA points to both public and non-public actions taken by the Cuomo administration to penalize it for its views. State officials issued press releases and sent threatening letters to banks and insurance companies, and also allegedly communicated ‘backchannel threats’ to companies with ties to the NRA, warning that they would face regulatory action if they failed to end their relationships with the organization.”

“If the NRA’s charges are true, the state’s actions would clearly violate the First Amendment. Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.”

“. . . . The NRA says that it has since had serious difficulty replacing its corporate insurance because nearly every potential replacement was afraid of being investigated by the state. The NRA also says that numerous banks have withdrawn bids to provide basic financial services because the April letters from the state indicated that any association with the NRA could expose them to regulatory retaliation.”

“The state argues that even if all of the NRA’s claims are true, the First Amendment doesn’t apply. We disagree, and as we note in our brief, dismissing the NRA case “would set a dangerous precedent for advocacy groups across the political spectrum. Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”

There is more — read the entire piece here.

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FAN 199.5 (First Amendment News) 17 Groups Issue Statement Condemning “Trump’s Effort to Intimidate Book Publisher”

Reecently, the National Coalition Against Censorship (NCAC) joined 16 other organizations in condemning President Trump’s effort to intimidate a book publisher by threatening legal action. The joint statement, released on August 17, 2018, states that the President’s attempts to intimidate book publishers will fail.

According to that statement: “For the second time this year, President Trump has attempted to intimidate a book publisher. Unhinged: An Insider’s Account of the Trump White House, a book by Omarosa Manigault-Newman, contains statements that the president finds ‘disparaging.’ A letter sent to the book’s publisher, Simon & Schuster, claims that the publisher is liable for ‘substantial monetary and punitive damages.'”

“The statement stresses how important free speech and access to information about public matters are to the American people. The U.S. Supreme Court has declared that public debate on issues may include ‘vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.’ Statements about the current administration, however unpleasant, are crucial so the public has information to make informed decisions. Efforts to undermine freedom of speech and freedom of the press are, the statement reads, ‘the hallmark of a totalitarian regime.'”

The statement and the full list of signatories can be found here.

Related

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FAN 199.4 (First Amendment News) Volokh on “Super-Secret Prior Restraints”

Over at The Volokh Conspiracy (on Reason.com) blog, Professor Eugene Volokh has some quite thoughtful observations on a most unusual case.  The controversy arose in connection with an extortion case and a court-0rdered sealed emergency speech-restrictive injunction, a matter about which Volokh wrote about earlier.

Since then, the judge in the state district court of Garfield County, Oklahoma, issued a permenant injunction.

Here is how Porfessor Volokh summed up his take on the matter as of that point in time:

Professor Eugene Volokh

“This seems to me an interesting test case for many recurring questions about the First Amendment and injunctions:

  • “Should courts be able to order people not to reveal certain information because they acquired it unlawfully, because revealing it would be a breach of a duty of confidentiality, or because it is allegedly false?
  • Should it matter that the person’s motives for threatening to reveal the information seem to be extortionate—and, if so, should the court try to enjoin just the extortion, or also enjoin the revelation of the information, period?
  • Should the victims of this apparent attempted extortion be only able to proceed by calling on criminal prosecutors, or should courts be able to supplement this criminal process with fast-moving emergency injunctions? (Acosta was never prosecuted; PSSI’s counsel tells me that this is because law enforcement couldn’t locate him, and he wasn’t heard of again after being served on April 27.)
  • Was the injunction correct in barring Acosta “from contacting any governmental agency or media outlet regarding his allegations”? Or should any duty of confidentiality in such a case be rejected as against public policy, when it bars people from alerting the U.S. Department of Agriculture (or similar agencies) to possible health risks—however ill-intentioned the people were when they gathered the information, and however spurious those allegations may (or may not) prove to be when the government does investigate them?”

“These are all interesting questions, I think, and ones much worth debating. It’s certainly possible (though I think not obvious) that the right answer to those questions is that PSSI should have prevailed under all of them.”

The conceptual plot thickens

“But the problem is that it was impossible for anyone to debate them, because all the documents in the case (though, thankfully, not the docket) were sealed. I think this sealing violated the common-law and First Amendment rights of access to court records; those rights aren’t absolute, but they are quite strong, especially when sealing of entire documents (including court orders) is involved. (See this post about a different case for more on that body of law.) Moreover, as I argued in this post from two months ago, an Oklahoma statute expressly requires that any sealing order itself be public, and expressly explains why the case was sealed; in this instance, this statute wasn’t followed. (The statute was enacted in 2014, and might thus not have been on the judge’s radar.)”

Sealed Orders Unsealed 

“Fortunately, after I moved in June of this year to unseal the sealing orders—a first step towards unsealing the rest of the case—the judge promptly did so (without objection by PSSI). And as I was preparing a motion to unseal the rest of the case, the judge, to his credit, himself issued an order to show cause why the case shouldn’t be unsealed. PSSI responded that it didn’t object to the unsealing at this point, “because Defendant’s allegations regarding the presence of bacteria on equipment at the Enid Plant have been definitively proven to be false and the emergent concerns associated with the disclosure of the allegations have since subsided.” The case was indeed unsealed several days ago.”

Some New Questions

“So, to the questions I ask above, I should also add:

  • Should such disputes be litigated under seal—on the theory that this is the only way to effectively prevent the harm caused by defendant’s apparently tortious conduct—or should they be litigated in open court, on the theory that it is important for the public to be able to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system”?
  • Indeed, might such monitoring be especially important precisely when the courts are issuing orders restricting people from speaking—including through allegations (whether or not the courts view them as well-founded) of serious risks to public health?”

To read the full blog post, replete with all the incredible factual background, go here.

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Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely.

Geoffrey StoneSex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017)

___________________________________________

The nation’s only History Book Festival returns to Lewes, DE., for its second year.

History Book Festival Speakers

Friday Sept. 28th & Saturday Sept. 29th

KEYNOTE (Friday Evening Sept. 28th / tickets here) 

— Blanche Wiesen Cook

  •  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3)

 Interviewed by Paul Sparrow, Director of the FDR Library

 Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR

_________________Saturday Sept. 29th_________________

 Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell 

 Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker

The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé

Valley Forge by Bob Drury and Tom Clavin,

Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito

Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler,

The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman

— The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D

Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn

Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz

The Hunger (historical fiction), by Alma Katsu

The Kennedy Debutante (historical fiction) by Kerri Maher 

The Widows of Malabar Hill (historical fiction) by Sujata Massey 

Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer

The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money

Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce

Delaware’s John Dickinson: The Constant Watchman of Liberty 

— Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift

Miles and Me by Quincy Troupe

Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel 

Not Our Kind (historical fiction) by Kitty Zeldis

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FAN 199.2 (First Amendment News) Forthcoming — Special 200th Issue: All-Women Contributors

In September, we will celebrate the 200th posting of the regularly scheduled issue of First Amendment News. The first issue of FAN appeared on February 10, 2014 on the Concurring Opinions website.  

Kellye Testy

To mark the 200th posting we have organized a special online symposium, the first of its kind either online or in print (as far as I know).  The symposium will consist of an all-women issue — 16 women writing original essays on various aspects of freedom of expression under the First Amemdment. The issue will include essays by noted law professors, lawyers, activists, and journalism and communications scholars.

The forthcoming issue follows on the heels of FAN 199, another Special Issue — 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

 Kellye Testy (President of the Law School Admission Council,  former president of the AALS & former Dean of the University of Washington Law School) is writing the foreword to the symposium. 

The 16 Confirmed Contributors are:

Jane Bambauer

Mary Anne Franks

Sarah C. Haan

Laura Handman

Marjorie Heins

Margot Kaminski

Genevieve Lakier

Lyrissa Lidsky

Jasmine McNealy

Helen Norton

Tamara Piety

Ruthann Robson

Kelli Sager

Alison Schary

Morgan Weiland

Sonja West

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FAN 199.1 (First Amendment News) Two New Podcasts — Dissent in the Era of the Gutenberg Press & Free Speech in the Robotic Era

Two new podcasts — the subjects which are separated in time but not in concept — address the relationship between the modes of communication and censorship.  The first is a Clear & Present Danger podcast by Jacob Mchangama entitled The Great Disruption – Part II. The second is a So to Speak podcast narrated by Nico Perrino entitled Robotica: Speech Rights & Artificial Intelligence and consists of an interview with Ronald Collins and David Skover.

In episode 11 we continue to survey the wreckage after hurricane Luther was unleashed on Europe with the Reformation. When the Reformation mutated and spread across the continent a burning question arose: Can people of different faiths live together in the same state? Should social peace be based on tolerance or intolerance? We look into questions such as

  • How did other Protestant reformers like Calvin and Zwingli react to religious dissent?
  • In what manner did English and continental censorship laws differ?
  • How did the Catholic Church react to the Reformation?
  • Which states were the first to formalize religious tolerance?
  • How did the scientific and philosophical ideas of Galileo and Giordano Bruno conflict with the religious monopoly on truth and what were the repercussions?

___________________So to Speak podcast_______________________

David Skover (left), Ronald Collins (center) & Nico Perrino (right)

On this episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

___________________Make No Law podcast_______________________

Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?

In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissent in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.

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FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

* * * *

Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.

Related

_____________The 38 Women________________ Read More

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FAN 198 (First Amendment News) The new spin on defamation practice

How are you supposed to prove as a defamation plaintiff that the journalist knew what they were writing was false if you don’t have access to the identities of their sources? It’s really problematic. — Elizabeth ‘Libby’ Locke

Headline: “New York Times, NBC, and ‘60 Minutes’ Bigwigs Hired These Media Assassins to Fight #MeToo Stories”

That is the banner accompanying a news story filed by Lachlan Cartwright in The Daily Beast. Here are a few excerpts:

  • “One of television’s most powerful men, 60 Minutes Executive Producer Jeff Fager, hired a law firm that boasts about “killing stories” for a Washington Post investigation into him, three sources familiar with the matter told The Daily Beast.””The story was a deep dive into what CBS managers knew about former anchor Charlie Rose’s alleged sexual misconduct, but due to the aggressive tactics of law firm Clare Locke, the sources said, the story was ‘effectively neutered.'”
  • “Clare Locke is the creation of husband and wife team Tom Clare and Elizabeth ‘Libby’ Locke. ‘Some of Libby’s biggest defamation ‘wins’ are stories the public will never hear about,’ her website says. They have litigated against Rolling Stone, The New York Times, Katie Couric, CNN, and Gawker, to name a few.”
  • “Clare Locke was ‘able to slow it down and in effect change the dynamic,’ a person with knowledge of the situation told The Daily Beast. The law firm sent The Washington Post several letters threatening litigation, the sources said. As a result, other reporting about [60 Minutes Executive Producer Jeff] Fager was left out of the published story, three sources said.”

Reply 

  • “Tom “Clare told The Daily Beast: ‘We’re proud of the pre-publication work we do to make sure that media reports about our clients are truthful and accurate.'”

Theodore J. Boutrous Jr. (credit: Zimbio)

Comment

“‘There’s is a new spin on defamation practice. They are bragging about killing stories. They are not focusing on litigation but the pre-publication element to squash a story,’ said Theodore J. Boutrous Jr., partner at the Gibson Dunn law firm and a vocal First Amendment advocate.”

Related

→ A.J. Katz, Jeff Fager Reportedly Hired Law Firm to Kill a WaPo Investigation Into His Role in Charlie Rose Saga, Adweek, July 20, 2018

5 Notable New & Forthcoming Commentaries on the Janus Case

Professor William Baude (credit: SCOTUSblog)

Professor Eugene Volokh (credit: UCLA Magazine)

“[W]e think the [Janus v. AFSCME] majority—and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar —erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of—likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong.

“The most striking thing about Justice Alito’s majority opinion–to me, anyway–is that the Court majority was willing (quite eager, in fact) to overrule such a well-entrenched precedent without providing virtually any basis for thinking that the fee deduction “abridges” anyone’s actual speech.  As many scholars have long explained (including my colleagues Greg Klass and David Luban, as well as, more recently, Eugene Volokh and Will Baude), Justice Alito is right that “Abood was poorly reasoned–but in the other direction.  The original sin of Abood was not the Court’s failure to prohibit agency fees for collective bargaining functions, but instead in holding that employee deductions can implicate the Free Speech Clause in cases where there’s no compelled association (no one is required to join the union), no possibility of any misattribution of the organization’s speech to the objecting payers, and the payment in question is not triggered by the objector’s own speech (as in Tornillo and PG&E).”

“This post is the first in a series on the uses and abuses of the First Amendment as a deregulatory tool – that is, the First Amendment’s potential to undermine regulatory schemes that protect workers, consumers, voters, investors, and more. The format is borrowed from Slate’s Supreme Court Breakfast Table. The participants are Nikolas Bowie, Caroline Mala Corbin, Catherine Fisk, and Charlotte Garden.”

Professor Jedediah Purdy (credit: Duke University School of Law)

“Once we see that any constitutional vision involves some relationship between the “democratic” and the “capitalist” parts of capitalist democracy, it becomes possible not just to criticize the Court’s siding with market winners, but also to ask what kinds of equality-pursuing policies the Constitution must permit to reset that balance in favor of democracy.”

“This short white paper explains how progressive states can undo the disruptive effect of the Supreme Court’s decision invalidating public union fair share fees in Janus v. AFSCME, Council 31.

“Put succinctly, lawmakers can amend state law to permit government employers to reimburse unions for their bargaining-related expenses directly. Such an amendment would be revenue neutral for government employers and unions, and it would result in a net increase in take home pay for public sector workers (on the order of $200 per year for an unmarried worker making $50,000).”

3-D Guns & Free Speech  Read More

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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

Purpose
  • To discuss H.R. 4382, the Free Flow of Information Act, a shield law that conditions the federally compelled disclosure of information by journalists.
Background
  • 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” Read More