Tagged: Freedom of the Press

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FAN 200 (First Amendment News) Sonja R. West, “President Trump and the Press Clause: A Cautionary Tale”

Sonja R. West is the Otis Brumby Distinguished Professor in First Amendment Law at the University of Georgia School of Law. Her post is shared by the Law School and the Grady College of Journalism and Mass Communication. Professor West specializes in constitutional law, media law and the U.S. Supreme Court. Two of her more recent publications are: “Suing The President For First Amendment Violations,” 71 Okla. L. Rev. 321 (2018) and “Favoring the Press,” 106 Calif L. Rev. 91 (2018).

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Professor Sonja R. West

President Trump is waging a self-declared “running war” with the press, prompting an abundance of analysis from journalists and scholars alike. Faced with attacks of being “fake news” and “the enemy of the people,” the news media are sounding the alarms about troubling issues like decaying norms, dwindling public trust and even incitements to violence.

Thanks to his administration’s open hostility toward the press, however, Trump is also exposing a very different, and rarely discussed, vulnerability of the modern news media: The United States Supreme Court’s failure to adequately protect the press under the First Amendment.

When it comes to constitutional rights and protections for the press, the Supreme Court has long adopted a two-sided approach. On the one hand, the Court routinely speaks—often in quite eloquent terms—about the vital role the press plays in our democracy. Yet, on the other hand, it consistently refuses to recognize any unique First Amendment safeguards that would support the press in this work.

Once they publish or broadcast their stories, of course, members of the press enjoy the same robust rights as everyone else under the Speech Clause. But the First Amendment also secures separate protection for the freedom of the press. This express guarantee raises the question of whether issues affecting the press should ever merit special constitutional consideration. The Court has been steadfast in its insistence that the answer is no.

In several articles, I have criticized the Court’s First Amendment jurisprudence for focusing all its attention on the Speech Clause, while virtually ignoring the Press Clause. This failure by the Court to recognize the unique constitutional status of the press flies in the face of the document’s text and history. In fact, the historical evidence shows that the founding generation believed a free press to be of heightened constitutional importance—surpassing even that of individual speech rights.

The framers particularly valued the structural role that the press plays in our democracy. A free press, they contended, serves as a check on government tyranny and informs the public of newsworthy matters. While the Court has acknowledged these important press functions in passing, it has nonetheless declined to identify any concrete rights that would support this work. It, instead, has decided to lump all speakers together and protect them almost entirely through the Speech Clause. This has left the press without key protections, particularly in the area of newsgathering. The Court’s all-speakers-equal approach not only fails to provide the press with distinct constitutional rights, but, as I argue in my most recent piece, it potentially threatens even legislatively granted press protections. (Oh, and since you asked, yes, it is possible for the Court to define the press.)

This brings us to President Trump. While the Court’s abandonment of the Press Clause long predates the Trump Administration, recent events are shining a spotlight on the consequences of the Court’s decisions. Among the most concerning issues are rights of access, legal defenses against government searches and subpoenas, and protection from criminal prosecution.

The Court loves to extol the vital role of the press as government watchdog. Members of the press, the Court tells us, serve as “surrogates for” and “the eyes and ears of” a public that has “limited time and resources with which to observe at first hand the operations of [its] government.” In order to inform the public about “what their government is up to,” the press often needs access to government places or information. Yet the Court has declared that the press has no right to “special access to information not shared by members of the public generally.”

President Trump (credit: NBC News)

Limitations on press access, of course, greatly hinder the ability of journalists to effectively monitor government actions. And while it can be difficult to assess the full effect of these restrictions, there are times when it is clear that the public is being kept in the dark about serious matters. We have seen this recently in the controversy surrounding the detention of migrant families. The Trump Administration has strictly limited access to these detention centers. Thanks to the Court, of course, the news media has no claim to a constitutional right of access. This leaves the American public to debate these policies without any images from independent photojournalists, forced instead to rely on only government-supplied photos. Similarly, it has been unclear whether journalists have any constitutional arguments when they have been selectively banned from the president’s meetings with foreign leaders, White House press briefings and events, and a national summit involving the Environmental Protection Agency. One reporter was even physically pinned against the wall after trying to ask a federal agency official a question. The problem here is evident, because if the press can’t ask questions then the public doesn’t get answers.

Another crucial way that members of the press are different from other types of speakers is their increased interest in safeguarding their newsgathering processes and confidential sources. The Court has acknowledged the issue, admitting that “without some protection for seeking out the news, freedom of the press could be eviscerated.” But the Court, nonetheless, has refused to recognize First Amendment defenses for reporters from government searches and subpoenas.

The dangers of the Court’s failure to protect journalists from government surveillance began coming to light even before Trump took office. The news media strongly criticized the Obama Administration for seizing the phone records of twenty Associated Press reporters; monitoring the activities, phone calls and personal emails of Fox News’s James Rosen; and waging a years-long campaign to force a Pulitzer Prize winning New York Timesreporter to reveal his confidential source. In response to pushback from the press, Obama’s Department of Justice ultimately strengthened its internal guidelines regarding the news media.

The problem, however, is that self-imposed guidelines do not have the strength of constitutional (or even statutory) protections, and they were quickly called into question by Trump’s Attorney General, Jeff Sessions. It was thus not a surprise when, earlier this summer, the news broke that Trump’s Department of Justice had seized a year’s worth of New York Times reporter Ali Watkins’ emails and phone records. And, as Trevor Timm wrote in the Columbia Journalism Review, this is likely just the beginning, because “[w]ith three other, unidentified reporters mentioned in court documents related to the leak case Watkins is ensnared in, and dozens of other similar investigations going on as we speak, it’s anyone’s guess how many journalists the Trump administration is currently spying on.”

Finally, and most seriously, members of the press are unique in the threat they face of criminal prosecution. The very nature of newsgathering often means that journalists are on the frontlines of volatile situations. Likewise, their role as “a powerful antidote to any abuses of power by government officials” frequently makes them the special target of government ire. The Court has acknowledged this heightened risk, noting that the use of prosecutions for criminal libel was a key part of the “history of conflict between the Crown and the press.” Yet the Court’s one-size-fits-all view of the First Amendment suggests that journalists who are arrested while engaged in an act of newsgathering or reporting are, as a matter of constitutional law, viewed no differently than any other speaker. Such an approach belies the history of press liberty in our country and leaves the press particularly vulnerable to government abuse.

We can again thank the Obama Administration for setting a dangerous example in this area. In 2010, it took the unprecedented step of naming Fox News’s Rosen as “an aider/abettor and/or co-conspirator” under the Espionage Act for his newsgathering efforts to obtain classified information.

There has been no criminal prosecution against a reporter during Trump’s presidency. Yet. But shortly after his inauguration, he did tell then-FBI Director James Comey to consider putting journalists in prison for publishing classified information. There was also a reporter arrested and criminally charged for shouting questions at a member of Trump’s cabinet. Another journalist was arrested while covering an immigration protest then detained by ICE and threatened with deportation. And nine journalists were arrested while covering Trump’s inauguration, including a photojournalist who was charged with eight federal felonies and faced up to 60 years in prison. In all, the Committee to Protect Journalists has identified 40 instances of members of the press being arrested or detained in the United States since the beginning of 2017.

The Constitution singles out the press for protection because of its unique roles as government watchdog and public informant. The Court should have given this direct constitutional dictate its due long ago, and its failure to do so has always come with risks. But thanks to President Trump’s ongoing enmity toward the press, we are now seeing the consequences far too clearly. It is time for the Court to embrace what the framers articulated so long ago—we must protect our press, because that is how we protect ourselves.

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FAN 200 (First Amendment News) Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Laura Handman and Lisa Zycherman are attorneys at the Washington, D.C. office of Davis Wright Tremaine (DWT).

Ms. Handman ia partner at DWT and is the co-chair of the firm’s appellate practice and divides her time between the New York and D.C. offices. For thirty-five years she has provided pre-publication counseling and litigation services from complaint through trial and appeal to U.S. and foreign broadcasters, film studios, and book, magazine, newspaper and Internet publishers and non-profits.

Ms. Zycherman is counsel at DWT.  She represents and counsels clients on a wide range of issues in First Amendment, media, and intellectual property law, including libel, copyright, trademark, right of publicity, privacy, and newsgathering matters. Lisa also advises newspaper, magazine, website, television, film, and book-publishing clients on pre-publication and pre-broadcast legal issues.

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Laura Handman

SLAPP suits – strategic lawsuits against public participation, a longtime part of the corporate playbook – are evolving.  The latest evolution involves the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, the famed set of laws designed to take down crime groups like the Mafia.

When we talk about censorship, we often focus on government actors.  But increasingly serious threats to advocacy and free expression are also being brought by corporations.  SLAPP lawsuits are a tool used by corporations to silence critics and First Amendment-protected speech.  They are often filed not because the plaintiff thinks they can win, but to harass and bleed the defendant of funds, and hopefully make them think twice about public criticism in the future.

A string of recent cases raise the question whether a company that is being targeted by protests and public criticism can respond using RICO laws. Congress passed the RICO statute in 1970 to help with some of the difficulty the government traditionally had prosecuting large organized crime rings.  RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its illegal acts, prosecute the people who supported it, and take its assets.  In this manner, a RICO claim is really just an elaborate conspiracy claim – but one that provides for treble damages, attorneys’ fees, and, perhaps most tantalizing of all, the ability to brand the defendant a racketeer.

Lately, the statute has been weaponized to establish a cause of action against activists in the form of a SLAPP suit, coupled with defamation claims, and alleging, most commonly, that an activist has participated in an enterprise, partnership, association, or group and committed at least two acts of “racketeering activity.”  The law itself lists several activities that qualify as a racketeering act, but typically activists will be alleged to have committed some type of fraud.  It is also likely that activists, having been charged with the commission of these activities, will be additionally charged with conspiring to commit these racketeering activities.  RICO is a heavy-weight – in the words of one court, “the litigation equivalent of a thermonuclear device” – and consequently imposes a significant chill on otherwise protected speech.  We know because we are representing defendants in three such suits.

Lisa Zycherman

In May 2016, Resolute Forest Products, a Canadian logging company, filed suit against Greenpeace, Stand.earth, and individual activists in the United States under the RICO statute.  Resolute accuses Greenpeace of “fraudulently” inducing people all over the world “to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its ‘campaigns’ against targeted companies.”  The so-called “false statements” are also the subject of libel claims.  Resolute argues that “soliciting money, not saving the environment, is Greenpeace’s primary objective, it has demonstrated time and time again that it will do anything to drive donations, including fabricating evidence.”  And, the company alleges Greenpeace is extorting the plaintiff’s customers by urging them to do business with more sustainable timber companies.  In this manner, the suit essentially argues that allegedly false speech is a criminal predicate act under RICO.

Greenpeace argued in a motion to dismiss that the case was a SLAPP and “an effort to muzzle protected speech.”  Judge Jon S. Tigar agreed, granting Greenpeace’s motion to dismiss the case.  He found that Resolute failed to prove any of its claims of true harm, racketeering, or other specific misconduct, but granted leave to amend, which Resolute did. The Amended Complaint is now awaiting a decision on Greenpeace’s second motion to dismiss.

Resolute is not alone.  In 2016, Leonid Goldstein, a computer engineer in Texas filed a civil RICO complaint against what he called “the climate alarmism bodies,” which included 40 organizations such as Greenpeace, Sierra Club, Climate Action Network, Ceres, and foundations that fund their work, and accused them of engaging in a “long-term criminal scheme” that humans have caused global warming.  A Texas court dismissed the case.

A more serious RICO suit was filed in August 2017 by Energy Transfer Partners ‒ the firm behind the Dakota Access Pipeline ‒ against Greenpeace and other environmental groups seeking $900 million dollars plus legal fees in an effort to not just sensor but destroy the company’s critics.  The complaint echoes Resolute’s claims: a broad conspiracy by advocacy groups running an illegal racketeering “enterprise” to further their own interests while damaging the company, Energy Transfer Partners.  It even alleges support for eco-terrorism, a violation of the Patriot Act, and drug trafficking.  RICO was designed to capture Mafia bosses who have others doing their dirty work. Law firms that are using the statute can target organizations that aren’t directly involved with any criminal behavior.  Dozens of organizations, American Indian tribes, and countless individuals were involved in the protests against the Dakota Access Pipeline.  (BankTrack, a small nonprofit that tracks the funding of controversial projects, was never even on the ground in the Dakota Access Pipeline protests.  It was sending letters to the pipeline’s investors and lenders from the Netherlands.)  By suing a handful and citing multiple named and unnamed co-conspirators, the suit may cause anyone with any ties to the movement to think twice before sending the next campaign email or launching a new effort.

The district court has already found serious deficiencies in Energy Transfer’s pleadings, dismissing two defendants and requiring it to replead its “hyperbolic” claims against Greenpeace.

There’s at least one obvious connection between the Resolute and Energy Transfer cases.  The same law firm represents each plaintiff and, according to a Bloomberg report, their counsel claims to be “in touch with other companies thinking of filing their own racketeering suits.”  As this lawyer told Bloomberg, he was aware of others considering impending Greenpeace lawsuits “and would be shocked if there are not many more.”

Climate change denier groups and right-wing websites have heralded these lawsuits against Greenpeace.  But there is a double standard here: when environmentalists floated a federal RICO investigation into ExxonMobil regarding its years of funding groups that rejected the scientific consensus on climate change, the same conservatives argued that the lawsuits (which were never filed) violated climate skeptics’ free speech.  “May free speech reign and scientific inquiry prevail,” printed Breitbart News in 2016.

Abusing a law intended to target organized crime syndicates such as the Mafia, these RICO suits paint a sinister looking-glass version of precisely the expansive democratic mobilization that the Supreme Court has so often embraced as core First Amendment rights.  These suits underscore the need for a uniform federal anti-SLAPP act, which has enjoyed bipartisan support in the past, particularly from trial bar-adverse members of Congress.

Retaliatory RICO SLAPP suits are a blatant attack on First Amendment rights, aiming to disrupt the normal operations of activists and advocacy organizations.  But if these well-financed corporate efforts successfully mobilize RICO against the exercise of core political speech and the rights of association of advocates, there is a deep concern that freedom of the press could be the next target.

At least so far, the effort to turn RICO against news organizations has been strongly rebuffed.  In one suit, an attorney alleged that in connection with reporting on the 2016 United States presidential election, seven television and print news organizations and 17 journalists associated with them acted as an “enterprise” in promoting and disseminating “false and misleading news reports” or commentary concerning Donald Trump’s candidacy for President.  Each false and misleading news report, the plaintiff claimed, was a predicate act of wire fraud supporting a claim of racketeering.  The suit was rejected by Judge Paul A. Engelmayer, however, who found “that dismissal is mandatory because the news reporting that [the plaintiff] assails as wire fraud is speech protected by the First Amendment of the United States Constitution for which civil damages to an offended audience are not available.”  The Second Circuit affirmed.  Hopefully, corporate efforts to annihilate advocacy groups who criticize them will be similarly rejected.

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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 172.1 (First Amendment News) Spielberg’s “The Post” — More Fiction Than Fact

James Goodale

“The Post, which opens tonight, is a good movie but bad history. It exaggerates the role of The Washington Post in the success of the publication of the Pentagon Papers and the subsequent Supreme Court case. It downplays the role of the true catalyst in the real life drama: The New York Times. Kay Graham and Ben Bradlee, who were good friends of mine, must be rolling over in their graves laughing at the roles Hollywood has given them.”

Thus begins James Goodale’s op-ed in The Daily Beast. Recall, that Mr. Goodale was the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. It has been reported that Goodale was “the leading force behind the Times’ decision to publish the Pentagon Papers in 1971.” He is also the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (2013). In other words, he is someone quite familiar with the real story of the Pentagon Papers episode.

The Post, adds Goodale, “is about Katherine Graham’s decision to publish the Pentagon Papers. It creates a false impression that the Post was a major player in such publication. It’s as though Hollywood had made a movie about the Times’ triumphant role in Watergate. In fact, the Post had as much to do with the Pentagon Papers as the Times did with Watergate. But then again, we don’t look to Hollywood for history but entertainment, and The Post is good entertainment at the Academy Award level. . . .”

“While The Washington Post gets the lion’s share of the glory in the movie, it was the Times that did the vast majority of the hard work and took on far more risk in publishing the Pentagon Papers.”

Goodale closes his op-ed with this observation: “The Times eventually won the Pulitzer Prize. It did not share this prize with the Post any more than the Post shared its prize for its Watergate coverage with the Times. For Hollywood now to create the impression that The Washington Post was the key driver responsible for the publication of the Pentagon Papers or the case is—well, it’s Hollywood: good drama but bad history.”

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FAN 99.2 (First Amendment News) Trump on Libel Law & Freedom of the Press

Mr. Trum speaking at Texas rally

Mr. Trum speaking at Texas rally

Yesterday, Donald Trump spoke at a rally in Fort Worth, Texas. According to Politico, in the course of that rally he took aim at the New York Times and the Washington Post — those “dishonest” publications.  He then elaborated on what he planned to do to change the law of libel:

“One of the things I’m going to do if I win, and I hope we do and we’re certainly leading. I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” (video clip here)

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From FAN 78 (Sept. 23, 2015):

Alan Garten, executive vice president & general counsel to The Trump Organization

Alan Garten, executive vice president & general counsel to The Trump Organization

Presidential candidate Donald Trump’s lawyer, Alan G. Garten, is helping his boss retaliate against the Club for Growth’s TV ads attacking Mr. Trump’s record on taxes. According to a New York Times story, Mr. Garten “sent a two-page letter to the group’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies. The threat of litigation comes a week after the group started a $1 million advertising campaign that paints Mr. Trump as a disingenuous politician who intends to impose a huge tax increase if elected president.”

Here are some excerpts from Mr. Garten’s September 21, 2015 letter:

“Simply stated, your attack ad is not only completely disingenious, but replete with outright lies, false, defamatory and destructive statements and downright fabrications, which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump ‘supports higher taxes,’ nothing could be further from the truth. To be clear, Mr. Trump’s tax plan, which is scheduled to be released later this wek, supports a lowering of taxes. . . .”

“In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.” [Video of Club for Growth ad here.]

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Eugene Volokh, “Donald Trump says he’ll ‘open up libel laws’,The Volokh Conspiracy (Feb. 26, 2016)

Matea Gold, “Bush PAC attorney to Trump counsel: You may want to try learning election law,” Washington Post (Dec. 9, 2015)

FAN 78: “Alan Garten, Trump’s Lawyer, Threatens ‘Multi-million dollar’ Lawsuit for Attack Ads Against His Client” (Sept. 23, 2015)

Abrams & Collins, “Confronting Trump — An American Debate Censorship Cannot Stop” (Dec. 18, 2015)

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FAN 17.1 (First Amendment News) — Court Denies Review in Reporter’s Privilege Case

Earlier this morning, the Supreme Court denied review in Risen v. United States, a reporter’s privilege case involving the Pulitzer Price winning New York Times journalist James Risen.

The two issues raised in the case were:

(1) Whether journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial; and (2) whether a federal common law privilege should be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial.

In a complex array of vote lineups on various aspects of the main opinion, the Circuit Court (led by Chief Judge William B Traxler, Jr. and joined in some parts by Judges Albert Diaz and Roger Gregory) ruled against James Risen. The Chief Judge declared that “there is no First Amendment testimonial privilege, absolute or qualified, that protects reporter from being compelled to testify in criminal proceedings about criminal conduct that reporter personally witnessed or participated in, absent showing of bad faith, harassment, or other such non-legitimate motive, even where reporter has promised confidentiality to source; in present case, federal trial court erred by quashing trial subpoena issued to journalist who allegedly received classified information about covert operation from former CIA case officer, in criminal prosecution of that individual for disclosure of classified information, since there is no First Amendment reporter’s privilege in criminal cases.” The Chief Judge also noted that there was no federal common-law reporter’s privilege protecting confidential sources, and if there were one the federal government would have satisfied it in this case.

Joel Kurtzberg of Cahill Gordon and Reindel filed the cert. petition on behalf of Mr. Risen. Lee Levine of Levine Sullivan Kock and Schulz filed an amicus brief on behalf of ABC and other media groups in support of the Petitioner. And Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression also filed an amicus brief in support of the Petitioner.