Monthly Archives: February 2020

The Pentagon. Photo: Adobe Stock

On the eve of the Trump administration presenting its budget proposals to Congress, the Wall Street Journal reported that the Pentagon plans to cut back its funding of Stars and Stripes, a government-ownedyet editorially independentnewspaper covering military matters.

That was news to the papers top management, which wasnt officially informed of the planned cut until Monday morning. Initially, the extent of the cut wasnt totally clear, though Terry Leonard, the papers editorial director, told NPR that it could amount to more than a third of the papers budget. On Wednesday, the Pentagon confirmed that it wants to cut the subsidy in its entirety.Like any newspaper, Stars and Stripes draws revenue from subscriptions, sales, and advertisingbut, it says, it also depends on the Defense Department subsidy to cover the expensive and sometimes dangerous task of overseas reporting and distribution.

Why is the Pentagon targeting Stars and Stripes now? Officially, the decision stems from a wide-ranging review ordered by Mark Esper, the defense secretary, in a bid to free up extra funds. But Elaine McCusker, the Pentagons acting comptroller, also said the department had decided that in the modern age, running a newspaper is probably not the best way we communicate. That remark elicited pushback. Barbara Starr, Pentagon correspondent for CNN, noted that the print edition of Stars and Stripes serves troops overseas who cant use their phones for security reasons. Leonard pointed out, on NPR, that Stars and Stripes isnt just a dead-tree product, but has a digital presence, including a podcast. And Ernie Gates, the papers ombudsman, took issue with McCuskers use of the word communicate. Stars and Stripess mission is not to communicate the DOD or command message, he tweeted. So we communicate misses the mission.

Instead, Gates wrote, Stars and Stripes is an independent, First Amendment publication. I asked him what that looks like in practice, given the operational and financial involvement of the federal government. He told me, in an email, that the arrangement does entail some limitations. Stars and Stripes journalists are Pentagon employees, and are barred from revealing classified information and running editorials (though they can publish secrets revealed by other outlets, as well as outside opinions). Nonetheless, Gates said, Stripes is part of a free pressfree of censorship, free of command interference, free of prior restraint or prior review. Its reporting on the military, he added, is analogous to the freedom a commercial news organization should have to report on its business side or ownership.

The proposed funding cut to Stars and Stripesand Gatess invocation of the First Amendmentreminded me of a story I wrote in 2018 about the Bay Journal, a newspaper that covers environmental issues on the Chesapeake Bay. The Bay Journal grew out of the Clean Water Act, which included provisions to keep the public informed about efforts to clean up the Bay. The Journal has performed that functionfirst as a newsletter, then as a full-fledged newspaper.

Like Stars and Stripes, the Journal is editorially independent but receives significant state fundingin its case, from the Environmental Protection Agency. In 2017, the EPA moved to cut the Journals funding. Its official reasoning was vague, but internal emails clearly suggested that the decision was linked to the papers coverage. As a result, the Journal sued the government on First Amendment grounds, claiming that the cut amounted to discrimination based on viewpoint, and thus was unconsitutional. It also argued that it had been denied due process. In the end, the EPA backed down and restored the grant.

At the time, the Journals plight intrigued me: how could the governmentwhich, after all, is elected to make funding decisionsbe constitutionally bound to fund certain types of speech? Experts I spoke with differed on the merits of the Journals case. But broadly speaking, the question boils down to whether or not a state-backed outlet has been designed as a government mouthpiece. If a Republican administration, for example, created a newspaper explicitly to push anti-abortion views, a subsequent administration with different priorities would likely have a right to change course. When it comes to papers with independent journalistic mandates, however, thats less clear-cut.

McCuskers use of communicateand Gatess objection to itthus goes beyond semantics. I would argue that Stars and Stripes, as an editorially independent organization, is a designated public forum under the First Amendment, Jonathan Peters, a professor at the University of Georgia and CJRs press-freedom correspondent, told me in an email. The First Amendment doesnt require the government to subsidize expression, but if the government does, it may not then discriminate based on the viewpoints of the organization whose speech its subsidizing.

At present, there is no clear indication that the Pentagon wants to cut Stars and Stripess funding for reasons relating to its reporting. There is some evidence, however, of tensions between the paper and military brass. Leonard told NPR this week that while the Pentagon hasnt tried to interfere with its coverage, it has imposed restrictions elsewhere. Were finding that in the current atmosphere, access is getting tighter and tighter, Leonard said. You cant help but see that theres people that resent the fact that were not playing ball with the team. (Leonard and a Pentagon spokesperson did not respond to requests for comment.)

While Stars and Stripes stresses its First Amendment mission, the First Amendment does not, as things stand, look sufficient to protect it against cuts to its funding. But it may not need it. With Congress divided, the Trump administrations budget, as a whole, is more a wish list than a viable legislative blueprint. The Stars and Stripes proposal could be ratified individually, but in the past, lawmakersincluding Republicans on the House Armed Services Committee (one of whom, Martha McSally, is now a US senator)have opposed cuts to its subsidy.

Being zeroed out in the presidents budget is not the best starting point, but Im sure Congress will have its own ideas, Gates told me. I wouldnt try to predict the outcome, but Im hopeful.

The Bay Journal, for its part, has been left alone by the EPA since its legal fight, and continues to do what any independent newspaper shouldscrutinize the government. On the Journals radar right now: Trumps budget proposing, for the fourth year in a row, to decimate environmental protections for the Chesapeake Bay.

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Stars and Stripes and the First Amendment - Columbia Journalism Review

SUMMARYNewswise In an article for JAMA Oncology, Tony Yang, a professor of health services and policy researcher at the George Washington University, and his co-authors at the Ohio State University argue that if the U.S. Food and Drug Administrations 2019 proposed rule on graphic tobacco warnings is finalized, the potential effect on consumer knowledge and understanding about the harms of smoking is likely to be high.

BACKGROUNDThe FDA proposed a rule in August 2019 to require 13 new warnings for cigarette packages and advertisements. The warnings would state that smoking causes various diseases and conditions, including cancer, heart disease, diabetes, erectile dysfunction, and cataracts. As required by law, the proposed warnings would also be accompanied by color images that cover the top 50% of front and rear panels of cigarette packages and at least 20% of the top of cigarette advertisements.

The new proposal follows a failed attempt in 2012 to place graphic warnings on cigarette packaging.

FAILED FIRST ATTEMPTIn 2012, a federal appeals court struck down the FDAs first attempt to require such graphic warnings, stating that the FDAs rule compelled speech in violation of First Amendment rights. The court argued that the FDA failed to provide evidence that the graphic warningswhich included images of a baby near a cloud of smoke, a man wearing an I QUIT shirt and a woman cryingwould lead to a reduction in tobacco use.

NEW ATTEMPTLearning from their previous attempt, the FDAs new proposed images are meant to educate consumers about the potential harms of smoking, not reduce tobacco use. The new images are more clear representations of the factual text-based content of the proposed required warnings, including a child wearing an oxygen mask, eyes with cataracts, diseased lungs and a man frustrated by impotence.

CONCLUSIONSDr. Yang and his co-authors believe the graphic warnings are a critical part of a larger multimodal strategy for reducing tobacco use, the leading preventable cause of cancer and cancer deaths in the United States.

EMBARGO INFORMATIONThe article, New Graphic Tobacco Warnings and the First Amendment will be published online in JAMA Oncology on Thursday, Feb. 13, 2020 at 11 a.m. EST.

Dr. Yang is available to discuss the 2019 proposed warnings and why he thinks they should survive constitutional scrutiny.

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New Graphic Tobacco Warnings and the First Amendment - Newswise

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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COMMENTARY: Focus on when the First Amendment protects ... and when it doesn't - Crow River Media

Close up, a feedlot cow is a sight to behold: Its a hulking, broad-shouldered eating machine with a three-foot-long tongue and a jaw that never seems to stop chewing. At just 20 months old, one of them can weigh 1,300 pounds. And where you find one, youre bound to find others. In Deaf Smith County, a cluster of communities 45 minutes west of Amarillo, 720,000 cattle each year are packed side by side like sardines at feedlotsthe sprawling, treeless expanses where the penned animals are fattened en masse before being shipped to slaughterhouses.

This part of the western Panhandle, stretching from the Oklahoma border into West Texas, is a national cattle feeding powerhouse that supplies one-fifth of the countrys beef. Its also home to mountains of manure. Each year the regions feedlot cattle produce millions of tons of waste (just one large feedlot produces roughly 1.1 million tons of manure), which is dried by the sun, stomped by hooves, and carried by the wind to nearby communities.

The resulting fecal dust storms, some so thick they blot out the sun, make it difficult to breathe, residents say. Some people have reported persistent bouts of bronchitis and other respiratory problems as a result of living in close proximity to feedlots. A growing body of research indicates that living near concentrated animal feeding operations, or CAFOs, is associated with myriad health risks including increased infant mortality due to respiratory disease and a greater risk of developing asthma in children and adults. In the Panhandle, the fecal dust from cattle feedlots appears to present an important public health problem that has spent little time in the public eye.

To get a true sense of the Panhandles massive network of cattle feedlots, youve got to take a few steps backor rather, up. Its only from the sky that you can see it for what it is: Miles upon miles of milling, munching, pooping cattle spread out as far as the eye can see. Its a remarkable sight that few ever glimpse.

Thats why the Observer, in partnership with the Food and Environment Reporting Network, hired photographer George Steinmetz to capture this image. We decided to document the operations using a drone, which is safer and more cost-effective than chartering an airplane or helicopter. But after doing some homework, we found that simply photographing a feedlot with a drone could open us to lawsuits, fines, and even jail time.

In 2013, Texas legislators passed a bill prohibiting the use of drones to conduct surveillance of people and properties and making it a misdemeanor offense for possessing or distributing such an image. In subsequent legislative sessions, lawmakers took the prohibitions even further, making it illegal for drones to take pictures of prisons, sports venues, and cattle feedlots. The rationale was that drones would make it easier for bad actors to keep tabs on the facilities. (This is the same straw-man argument lawmakers have used to keep footage from the Capitols video cameras, along with other formerly public records, out of the public eye.)

Though photojournalists must abide by the ban, it doesnt apply to everyone. Real estate companies, engineering firms, and others are exempt, along with anyone feedlot operators permit to take pictures. In November, when I called approximately a dozen feedlot operators in Deaf Smith County to ask permission to take drone photographs for our story, none of them acquiesced.

That could change soon. The National Press Photographers Association is suing leaders of the Texas Department of Public Safety, the Texas Highway Patrol, and the district attorneys office in Hays Countywhere police warned a reporter not to continue using a drone to photograph a structure fireover the law. Plaintiffs say the prohibitions single out photojournalists, limit reporters constitutional rights, and fly in the face of federal airspace rules. These restrictions chill and criminalize speech and newsgathering activity protected by the First and Fourteenth Amendments, reads the lawsuits petition, which was filed September 26 in federal court. Defendants in the case have filed a motion to dismiss. There has been no ruling on the motion.

Theres that old cliche that a picture is worth a thousand words, said Jim Hemphill, who is trying the case and also represents the Observer in legal matters. Concentrated animal feeding operations pose potential hazards with regard to environmental pollution, with regard to treatment of animals, with regard to many things that may be in the public interest. There appears to be no compelling public interest in prohibiting [drone photography of CAFOs]. Brandon Wade, a professional freelance photographer in Dallas who has used drones extensively in his work, said that unmanned aircraft can give readers a unique view of newsworthy locationssuch as cattle feedlotsthat few other methods can. Aerial photography can show a sense of scale very quickly. With ground-based photography, its hard to get a sense of just how big these places are, he said.

In the end, our photographer still ended up nabbing some incredible shots of cattle feedlots in Deaf Smith Countyhe chartered a plane, at considerable expense, to get the images. But as the lawsuit notes, not all news organizations have the means to shoulder that additional cost, leaving their readers, listeners, or viewers without newsworthy information. If plaintiffs get their way, the problem will be fixed.

In the meantime, well just have to wait and not see.

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Its Illegal to Take Drone Photos of Cattle Feedlots in Texas. Press Groups Say That Violates the First Amendment. - The Texas Observer

Gene Policinski is president and chief operating officer of the Freedom Forum Institute.

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at[emailprotected], or follow him on Twitter at@genefac.

See the article here:
FIRST FIVE: Focus on when the First Amendment protects and doesn't - hays Post