Monthly Archives: March 2020

When we talk about the First Amendment and freedom of expression in higher education, our analysis typically focuses on individual rights. We talk about the rights of unpopular speakers to express their views, the rights of students to invite such speakers, the rights of protesters to respond to or disrupt those with whom they disagree, and the rights of faculty members to say or teach without interference. But what about the First Amendment rights of the college or university itself, as an institution? Does a college or university have First Amendment rights in cases like these?

The traditional answer in these cases is no. While university speakers, students and faculty members have First Amendment rights, the university is a mere neutral forum. The university provides the setting, the context, in which individuals seek to express, protect and vindicate their rights, but it is not itself viewed as a significant First Amendment actor. The university can be sued for lack of neutrality, but in free expression cases, it basically serves as the arena, not as a player with its own unique values and interests.

I believe this is wrong, both as matter of law and of fundamental principle. I believe that colleges and universities have strong First Amendment rights as institutions, and that those institutional rights are so important to a free society, they may, in some instances, trump the rights of many individuals who seek to speak in the university setting.

The foundation of this robust idea of institutional First Amendment rights lies in Justice Frankfurters famous concurrence in the case of Sweezy v. New Hampshire, 354 U.S. 234 (1957). In Sweezy, a state attorney general sought to question an economist and magazine editor who had delivered a lecture on Marxism at the University of New Hampshire. Sweezy refused to answer, was held in contempt and ultimately took his case to the U.S. Supreme Court, where his contempt conviction was overturned.

The Sweezy decision is often cited as the foundation of the individual First Amendment right of faculty members to teach free from government interference, but a careful reading of Frankfurters opinion reveals that it is really the university, not the individual, that possesses the most important rights under the First Amendment. Frankfurter noted that the existence of our free society depends on free universities. This means, he continued, the exclusion of governmental intervention in the intellectual life of a university.

How can we protect universities from unconstitutional intervention? By respecting what Frankfurters opinion, quoting a South African study on academic freedom, called the four essential freedoms of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. In Frankfurters view, Sweezy had a right to speak at the University of New Hampshire not because of his own right to free expression, but because the university has a right to control its own intellectual environment, and thus the right to choose who will and who will not speak in its halls, free from government dictates.

Justice OConnor reasserted this strong view of university rights and university autonomy in the landmark affirmative action case Grutter v. Bollinger, 539 U.S. 306 (2003). In Grutter, OConnor noted that in the United States, universities occupy a special niche in our constitutional tradition. The Supreme Court, she wrote, has long recognized that universities have a right of educational autonomy that is grounded in the first amendment. This includes, she wrote, quoting Justice Powell in Bakke, the freedom of a university to make its own judgments as to education.

These basic constitutional principles have never been questioned, but their implications have long been ignored. If, as Sweezy, Bakke and Grutter recognize, universities occupy a special and protected place in First Amendment jurisprudence, with a right to autonomy and to control their own educational and intellectual environments, the implications are profound. On this reading, universities do not have to be a passive neutral forum. They may, instead, exercise a strong First Amendment right to define for themselves the appropriate educational and intellectual setting for learning, free from interference by legislatures and courts. This means that universities may, contrary to current practice, exclude some speakers whose views have no place in an intellectual setting devoted to science, rational argument and the creation of a proper learning environment.

How might this robust First Amendment institutional right to autonomy play out in specific cases? Imagine a white supremacist is invited by a student group to speak at a public university. Under traditional neutral forum analysis, the university does not have a right to exclude him or her. But if, as Sweezy, Bakke and Grutter suggest, the university has a right to control its intellectual and educational environment, it may exclude a speaker it believes will harm the academic environment it seeks to maintain. If the university believes the speaker will undercut the seriousness of intellectual discourse or the right to students to study free from harassment, they do not need to provide a forum for that person to speak.

This notion of strong institutional rights under the First Amendment has not been tested in the courts. It may be that when push comes to shove, the courts will insist on content neutrality even if it interferes with a universitys autonomous right to create a proper intellectual and learning environment. But we wont know this, of course, until universities try to assert and protect what Justice OConnor called their right to educational autonomy based on their special niche in our constitutional tradition.

John Kroger served as the president of Reed College and as attorney general of Oregon.

More:
The University's First Amendment Rights | Leadership in Higher Education - Inside Higher Ed

WASHINGTON D.C. (WTNH) Connecticut Senator Richard Blumenthal is set to receive the First Amendment Defender Award from the Radio Television Digital News Foundation Thursday evening.

Blumenthal will be honored at the 30th annual recognition of First Amendment champions.

The award is presented to an individual or an organization that takes a public stand in support of press freedom.

At a time when press freedoms and access have been under attack, Sen. Richard Blumenthal from Connecticut has stood tall for the rights of journalists to do their jobs and inform the public. He has an impressive record of fighting for the truth and defending the publics need to know.

Sen. Blumenthal is currently serving his second term in the U.S. Senate representing Connecticut. Previously he served five terms at CTs Attorney General, fighting for individuals against large and powerful special interests. Among other things, he is being honored for his relentless work eradicating corruption in state government and making state contracting accountable, fair, honest, and transparent.

Blumenthal joins such honorees as the news show 60 Minutes, David Muir of ABC News, Steve Andrews of WFLA-TV, Lori Montenegro of Telemundo, Barbara Maushard of Hearst Television, and Robert (Bob) Horner of NBC News.

Read this article:
Sen. Blumenthal to receive the First Amendment Defender Award - WTNH.com

This episode features a lively (and fair warning long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University's Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users' speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn't think it's the victim of biased content moderation would be well advised to scream as loudly as possible about censorship anyway for fear of losing the victimization sweepstakes.

Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing to allow real transparency, and the government may have a first amendment problem forcing companies to disclose how they make their moderation decisions. Competition law as a way to encourage multiple curators? It might require a "magic" API, and besides, most users like a moderated Internet experience. Regulation? Only if we want to take First Amendment law back to the heyday of broadcast regulation (which is frankly starting to sound pretty good to me).

As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the CJEU's insufferable decision encouraging the export of European defamation law to the US with an extra margin of algorithmic censorship to keep the platform from any risk of liability. Turns out, that speech suppression regime is not just an end run around the first amendment; it's protected by the first amendment. I offer to risk my Facebook account to see if that's already happening.

In the news, FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers China's ever-spreading censorship regime which now reaches Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the US "name and shame" campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banks that's where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview AI's facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google, and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants.

Nick gives drug dealers a lesson in how not to store the codes for 53.6 million in Bitcoin; or is it a lesson in what to say to the police if you want that 53.6 million waiting for you when you get out of the clink?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a police tracking device from your car isn't theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is doing a slow striptease in its investigation of mobile carriers for selling customer location data; now we know who'll be charged (pretty much everyone) and how much it will cost them ($200 million), but we still don't know the theory or whether the inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll!

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, families or pets.

View original post here:
Will the First Amendment Kill Free Speech in America? - Reason

from the opening-up-our-libel-laws dept

It appears whatever modest amount of restraint that our President had regarding his early promise to "open up our libel laws" have gone away. As you may recall, during the campaign he made such a promise, perhaps not realizing that defamation laws are not under the purview of the federal government -- and any changes at the state level are limited by the 1st Amendment of the Constitution (not something he can write away with an executive order). Right before he was inaugurated, he seemed to back down a little on that promise -- telling the NY Times that someone had pointed out to him that with more open libel laws, he was more likely to get sued as well.

Over the first three years of his Presidency, while constantly lashing out ridiculously at the press, and the Washington Post and the NY Times in particular -- including his constant authoritarian attack of calling them "the enemy of the people" -- he had not sued. Until last week when he tapped lawyer Charles Harder (who, we'll remind you, was the lawyer in the lawsuit against us), to represent the Trump Campaign (rather than Donald directly) to sue the NY Times over an opinion piece. Trump and Harder have now done so again, this time suing the Washington Post over two opinion pieces.

The complaint -- like the one against the NY Times -- is laughable and will be thrown out of court. Again, opinions are not defamatory, and the articles were opinion pieces. The statements they make, that the Trump campaign declares defamatory are basically all ones based on disclosed facts. The complaint is short and not very detailed. It highlights just a single line in each post that it claims is defamatory:

On or about June 13, 2019, The Post published the article entitled Trump just invited another Russian attack. Mitch McConnell is making one more likely (the June 13 Article), by Greg Sargent, which contained the defamatory claim that Special Counsel Robert Mueller concluded that the Campaign tried to conspire with a sweeping and systematic attack by Russia against the 2016 United States presidential election.

The statement in the June 13 Article is false and defamatory. In fact, Special Counsel Muellers Report on the Investigation into Russian Interference in the 2016 Presidential Election released on or about April 18, 2019 (the Mueller Report), nearly two months before the June 13 Article, came to the opposite conclusion of the June 13 Article, namely, the Mueller Report concluded there was no conspiracy between the Campaign and the Russian government, and no United States person intentionally coordinated with Russias efforts to interfere with the 2016 election.

On or about June 20, 2019, The Post published the article entitled Trump: I can win reelection with just my base (the June 20 Article), by Paul Waldman, which contains the defamatory statement who knows what sort of aid Russia and North Korea will give to the Trump campaign, now that he has invited them to offer their assistance?

The statement in the June 20 Article is false and defamatory. There has never been any statement by anyone associated with the Campaign or the administration inviting Russia or North Korea to assist the Campaign in 2019 or beyond. There also has never been any reporting that the Campaign has ever had any contact with North Korea relating to any United States election.

These are both issues that are subject to interpretation, and neither piece comes anywhere even remotely close to the necessary standard for defamation of a public figure (which, uh, the President absolutely is). On the first one, Harder is leaning heavily on the "conspiracy" word. While the Report did not show direct coordination between the campaign and the Russians, it did show multiple connection points. Indeed, the report itself says:

The investigation alsoidentified numerous links between the Russian government and the Trump Campaign. Althoughthe investigation established that the Russian government perceived it would benefit from a Trumppresidency and worked to secure that outcome, and that the Campaign expected it would benefitelectorally from information stolen and released through Russian efforts, the investigation did notestablish that members of the Trump Campaign conspired or coordinated with the Russiangovernment in its election interference activities.

So this comes down to interpretation. The Mueller report showed links between the Russians and the Campaign, but did not find enough evidence to prove a conspiracy -- which is not definitive evidence of no conspiracy. Indeed, the report shows multiple situations in which members of the Trump Campaign appeared interested in working with the Russian government -- but not enough evidence of an actual conspiracy was found. But to say that's evidence of no effort to conspire is just silly. The opinion piece's summary of that as "tried to conspire" is... not anywhere near defamatory, in which case the Post would have to have believed this was false or published it with reckless disregard for the truth. That's... not the case.

On the second one, I'll note, with amusement, that the final sentence only mentions North Korea as a government that the Trump Campaign has not discussed the election with and leaves out Russia. Interesting. But, more to the point, the article in question was discussing a Trump interview with George Stephanopoulos in which Trump is asked if he'd accept damaging information on election opponents from foreign nations, and Trump replied:

"I think you might want to listen, there isn't anything wrong with listening," Trump continued. "If somebody called from a country, Norway, [and said] we have information on your opponent' -- oh, I think I'd want to hear it."

That is easily, and fairly, turned into the statement in the Post opinion piece that the Campaign was "inviting" foreign help. There is no way that such a statement could or would be seen as defamatory.

In the meantime, I feel the need to remind both Harder and Trump that not too long ago, in defending Trump against a defamation lawsuit in which Trump was the defendant, Harder wrote a stirring statement in support of the 1st Amendment and warned that:

A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

I wish the two of them would remember that sometimes.

Filed Under: 1st amendment, anti-slapp, charles harder, defamation, donald trump, free speech, slappCompanies: washington post

Here is the original post:
Donald Trump And Charles Harder Continue Their Assault On The 1st Amendment, Suing The Washington Post - Techdirt

There is an ongoing dust up involving the First Amendment, allegations of prohibited viewpoint discrimination and legislative immunity in the Texas Senate. Its fascinating stuff for political scientists, political practitioners, and journalists.

It started on Thursday, February 27, when a man testified at a Texas State Senate hearing wearing a t-shirt that said, F**K the POLICE, (but his shirt featured all the letters) and, to drive the sentiment home, accompanied by an image of a hand with the middle finger outstretched.

After learning about the hearing, Texas Lieutenant Governor Dan Patrick tweeted out:

Outraged to see this T-shirt at a Senate Hearing Thur.Future witnesses beware. No one will ever be allowed to wear such a vulgar shirt in a Senate hearing again-especially one that denigrates the brave men & women of law enforcement. Want to take me to court? Ok. Make my day.

Texas Lieutenant Governor Dan Patrick tweeted out his disapproval of people wearing vulgar shirts ... [+] while testifying before the Senate.

His tweet was met with a volley of criticism by First Amendment advocates who maintained that Lieutenant Governor Patrickand the Legislature in generaldoesnt have the right to abridge speech or pick and choose between types of speech.(Note to readers outside of Texas: the lieutenant governor in Texas is the most powerful lieutenant governor in the nation in that the person in that office actually runs the State Senate, not unlike how the Speaker of the House runs the House.)

Common in the citations to make their point was a U.S. Supreme Court decision from the Vietnam era. In Cohen v. California, the court ruled on the case of a 19-year-old man who was arrested for wearing a jacket that read, F**k the Draft, Stop the War, into a California courthouse. The court overturned his arrest and conviction on a 5-4 decision that determined that Californias law that prohibited the display of offensive messages was a violation of the freedom of expression as protected by the First Amendment.

Cohen v. California, decided in 1971, was often cited as the case that would prevent viewpoint ... [+] discrimination in a legislative body - but it likely doesn't as legislative bodies aren't public spaces and they're immune from interference by other branches of government.

It is interesting to note that in the Cohen case, the appellant did wear his offensive jacket in the courthouse hallways but removed it upon entering a judges courtroom, folding it over his arm. He was only arrested after leaving the courtroom for having worn the jacket in the public hallways of the courthouse. Had the reverse been true, and the judge ordered him ejected from his courtroom for wearing the jacket, and he resisted, the ruling likely would have gone the other way.

Of course, judges to this day enforce rules of decorum in their courtroomslook at any jury summonsit will instruct the prospective juror on the acceptable attire and conduct in a courtroom.

First Amendment advocates will admit to this but are quick to add that judges should not engage in viewpoint discriminationthough many still do today.

Which brings up back to Lieutenant Governor Patricks tweet. Lets break it down to its chief components.

First, that the shirt in question was vulgar and has no place in a Senate hearing.

Second, that the shirt was especially offensive in that it denigrated the brave men & women of law enforcement.

Third, that if you dont like it, you can take the lieutenant governor to court.

To the first question, while most analysts would admit that, just as a judge can set rules for their courtroom, so to can a legislative body set rules for decorum in the deliberative portions of their chambers, such as the floor and in hearing rooms. These are seen as different than public places, for example, the rotunda in a state capitol building or a public sidewalk.

Even so, Ari Cohn formerly a director at the Foundation for Individual Rights in Education (FIRE), a group that brings many successful free speech lawsuits against educational institutions, insisted that there is no decent enforceable legal definition of vulgar. So, even if the Texas Senate were to uniformly enforce a ban on offensive clothing, it wouldnt stand, presumably if any clothing with a message were allowed, even something as innocuous as a shirt that read Lake Travis High School.

Well return to this question in a moment.

The second issue is that the vulgar shirt in question was particularly offensive as it denigrated law enforcement officers. This is where the accusation of viewpoint discrimination focused. The lieutenant governor cannot, his critics claimed, pick and choose between messages he likes and those he doesnt likeeither take them all or ban them all.

And, lastly, if you dont like Lieutenant Governor Patricks actions, you can take him to court.

Butand heres the big questionis the Legislature in the course of its official business, subject to any restraint by the courts?

I would argue that, in its internal operations, the answer is an emphatic No!unless specifically proscribed by the Constitution or a state constitution.

First of all, the U.S. Supreme Court held in Minnesota State Bd. for Community Colleges v. Knight in 1984 that there is no constitutional right to force officers of the State acting in an official policymaking capacity to listen to the views of the public. Secondly, in Curnin v. Town of Egremont, decided by the First Circuit Court of Appeals with the U.S. Supreme Court allowing the ruling to stand in 2008 (denying certiorari), that The First Amendment does not give non-legislators the right to speak at meetings of deliberating legislative bodies and that

The Supreme Court has never extended First Amendment forum analysis to a deliberating legislative body or to the body's rules about who may speak. While no Supreme Court case is directly on point, the Court has addressed the underlying issue of the public's ability to address government policymakers:

The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices.

The court goes on to note that, Under the Speech or Debate Clause of the U.S. Constitution, Article I, section 6, there are constitutional separation of powers protections for Congress. Further, that The purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently. That This immunity extends to injunctive relief. And finally, that, while, No explicit federal constitutional protections cover state or local legislative bodies. there are still federalism and separation of powers concerns, which have led to the adoption of similar immunities for state legislators, citing the Knight decision.

Turning to the Texas Constitution, we see in Article III, governing the Legislative Department, Section 15, that disrespectful or disorderly conduct by any person not a member in the presence of the a house conducting its business can result in imprisonment for up to 48 hours. Given that this action would not involve executive branch law enforcement or judicial branch court proceedings, its likely that such an imprisonment would not accrue to someones arrest record or criminal record as the violation would be unique to the Legislature.

Lastly, going to the heart of the matter of viewpoint discrimination, is it permissible, under the any rules of a legislative body, that a committee chairman might only accept testimony from all Democrats or all Republicans? Yes, of course. As the federal courts have noted, Public officials daily make policy decisions based only on the advice they decide they need and choose to hear.

Id argue that a hearing where ten Republicans testify with no Democrat witnesses is a far more egregious form of viewpoint discrimination than is banning an offensive shirt, yet, its perfectly acceptable, legal, and constitutional for a legislative body to decide to do so and theres nothing the courts can do about it. Its done in the U.S. Congress all the time. Its an internal matter of that legislative body. The legislative function must be performed independently. Anything less would admit to judicial supremacy. Dont like it? Win the majority and run the house as you will.

Of course, if the courts did try to meddle in the internal affairs of the Legislative branch, that branch has the tools to fight back: they can impeach and remove judges, if they muster the political will to do so. They can also use their budgetary powers in creative ways so as to concentrate the minds of an overambitious co-equal branch.

While such actions are constitutional, whether they should be done or not crosses into ethical behavior and considerations of political prudence. Just because a legislative majority can do something, doesnt mean that they should or that there might not be consequences come election time.

Bottom line: Texas Lieutenant Governor Dan Patrick and other officers of the Texas Legislature are free to order the official and internal affairs of their respective legislative chambers as they wish, in accordance with the will of that body and free from interference of either the judicial or executive branches.

Continue reading here:
Do Non-Lawmakers Have A First Amendment Right To Speak Before A Legislative Body? Its A Question In Texas After A Man Testified Wearing A Profane...

As a journalism major in college, I learned a lot about the First Amendment and its importance. I don't have to like or agree with everything that is reported, discussed, aired, etc. However, it must be protected and not be restricted. So, I am very disappointed that the Tennessee Legislature is trying to pass a House Joint Resolution calling some news media outlets fake news and condemn them for denigrating our citizens. It is HJR 0779 and has been assigned to the Judiciary Committee after going to the Constitutional Protections and Sentencing Subcommittee.

As a journalism major in college, I learned a lot about the First Amendment and its importance. I dont have to like or agree with everything that is reported, discussed, aired, etc. However, it must be protected and not be restricted. So, I am very disappointed that the Tennessee Legislature is trying to pass a House Joint Resolution calling some news media outlets fake news and condemn them for denigrating our citizens. It is HJR 0779 and has been assigned to the Judiciary Committee after going to the Constitutional Protections and Sentencing Subcommittee.

This goes against the First Amendment. It is not right to single out certain media outlets that people dont like or dont agree with. If we start that, eventually every publication will have to go away since one side calls certain networks or publications bad, corrupt, or slanted against their cause/people. And, the other side does the same with different publications. And that just shouldnt happen.

Our founders knew the importance of a Free Press. The First Amendment states, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In other words, the press is supposed to be free from government interference. The question might be: Does this apply to the Tennessee Legislature as it does to Congress and the federal government? I think that it does, but I am not a constitutional expert or attorney. That possibly is what the subcommittees will look into.

Even if this resolution is adopted (or passes, I am not sure which), I will not be told how or what to think about the media and media outlets. I will decide that for myself. I will continue to watch and read the media outlets that I decide upon. We all have to determine what we listen to, read, watch, and follow. No one should be telling us that, especially not the Legislature, the governor, or the Congress, or the president.

We may not like what they are writing or airing but they have a right to do so. If we dont like it, we should change the channel, stop reading the article, or write a Letter To The Editor. Instead, we tend to overreact as this resolution is doing, fan the flames of discord, and call the other side awful things cult like, the deep state, etc.

I read and watch both of the publications listed in HJR 0779 as fake news CNN and The Washington Post. I also watch/read/listen to: PBS News, ABC News, CBS News, NBC News, Associated Press, MSNBC, Fox News, NPR, Time Magazine, The New York Times, San Diego Union-Tribune, The Oak Ridger, The Knoxville News Sentinel, Oak Ridge Today, The Tennessean, and others.

I dont watch or read them all of the time, but do regularly tune in and do buy papers. The newspaper industry has changed so much in recent years, and fewer people are supporting it. I continue to do my part so local news and other print options continue to be available.

I know people who regularly watch news channels and shows that I totally disagree with. But, is it my right to tell them to stop watching it? No. And, is it their right to tell me to stop watching what I choose? Again, no.

I am passionate about this since my first job out of college was a general assignment reporter for a small, twice-weekly county paper. I covered county government, county agencies, county courts, county commission, county school board, as well as the fire department, police department, sheriff department and ambulance service.

It was fascinating to learn how things work at the local level. It is something that in my opinion needs to continue. We need to know what is going on in our local communities that affect our children, our families, our health, our schools, our business opportunities, our taxes that we owe and so much more.

There are so many platforms now that anyone can write, post, talk, etc. This does concern me if those writers, bloggers or pundits have certain agendas. There are ways to verify the facts of an article. Also just because you dont like an article or a slant, that doesnt mean its fake news.

Perhaps slanted news, or extreme opinion in some cases. Or they are actually printing the truth that you dont acknowledge or agree with. In journalism school, we learned to verify facts, that opinions had no place in a news article, and to take our time without rushing to judgment. So much has changed since then.

I remember the days when Walter Cronkite ended his newscast with And thats the way it is after briefing the audience on the news of the day. Occasionally, he or someone else on the show would air an opinion piece.

Now, there are different bots and sites on Facebook, Twitter, and numerous web sites that post fake news and try to pass it off as real news. These often are re-posted or retweeted without any regard for the truth or who is behind the writing. I keep my guard up for these sites.

And, I may not like what a publication reports or prints, but since we have the First Amendment, they must be allowed to air it or print it. I just dont have to have watch it or read it, since I, too, have a First Amendment right.

A lot could and probably should be improved in the media today. I for one, get sick and tired of the extreme opinions from both sides that are regularly broadcast in the evening. Both have their own slant. I think it is up to us as informed citizens to view both ends of the spectrum to see where the other side is coming from. And to see the difference in how the same stories are told.

To read more about HJR 0779, please click on http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HJR0779. The resolution itself can then be read by clicking on HJR 0779 by Van Huss on the left column of the screen or clicking on http://www.capitol.tn.gov/Bills/111/Bill/HJR0779.pdf.

Patti Truex Cates is an Oak Ridge resident.

Follow this link:
Guest Column: On the 1st Amendment and restrictive resolutions - Oak Ridger

This week, Sen. Ron Wyden (D-Or.) and Rep. Ro Khanna (D-Cal.) introduced what is only the second proposal to reform the federal Espionage Act since that law was enacted in 1917.

The Espionage Act read literally permits the government to prosecute anyone who discloses government secrets to others not authorized to receive them (including persons who have never agreed to protect government secrets as part of their work). It is the main federal law used to prosecute national security media leaks.

The Wyden-Khanna bill focuses on journalists and news organizations. It would make only modest improvements to the sections of the law that permit the government to prosecute journalistic sources who have agreed to protect secrets. But it also comes at a time when press freedom advocates fear that the chance of something that has until now been thought unlikely the prosecution of a journalist for publishing government secrets is significantly higher than in the past.

As detailed in the Reporters Committees comprehensive survey of federal news media leak cases throughout history, there has been a dramatic uptick in just the last decade in cases involving national security reporting.

Prior to 2009, the government had successfully prosecuted only one source under the Espionage Act, a naval analyst charged with leaking photographs of Soviet ships. President Bill Clinton pardoned that man, Samuel Loring Morison, in 2001 precisely because his case was so unusual. Never before had a journalistic source been prosecuted successfully as a spy.

That changed with investigations started under President George W. Bush, which led to prosecutions under President Barack Obama. Obama brought 10 cases against journalistic sources and one against a Navy contractor accused in part of sending classified documents to a public archive. These include a number of high-profile cases, including the Chelsea Manning court martial and the still-pending Espionage Act indictment of Edward Snowden.

That trend continues under President Donald Trump. To date, his administration has brought charges in eight journalistic source cases and in one that involves the public disclosure of classified information, that of WikiLeaks founder Julian Assange.

The Assange case is particularly concerning because prosecutors were able to secure an indictment against Assange under the Espionage Act based in part on the sole act of publishing government secrets. This is the first time in American history where the government has deployed this legal theory, and there is nothing in the text of the Espionage Act stopping the Justice Department from using the same theory against a member of the press.

How would the Wyden-Khanna bill narrow the Espionage Act?

The bill introduced this week would make two primary changes to the law.

Before detailing these reforms, its helpful to understand a basic concept in criminal law. Generally speaking, there are two different types of crimes. First, there are completed crimes that is, crimes that one has performed oneself (think pulling the trigger in a shooting). A defendant in these completed crimes is charged as the principal.

Second, there are incomplete crimes, like conspiracy, acting as an accomplice, aiding and abetting, accessory after the fact, and failing to report a crime. In other words, these are cases where one hasnt pulled the trigger, but where the defendant, say, buys the gun or lets the shooter hide out on their property.

Under the literal text of the current Espionage Act, even individuals who dont have a security clearance and havent promised to keep government secrets can be charged as a principal. The applicable section of the Espionage Act covers anyone who has access to national defense information, and who communicates, delivers, [or] transmits that information to someone not entitled to receive it. The Justice Department has consistently and repeatedly taken the position that communicates or transmits includes the act of publication.

The Wyden-Khanna bill would effectively eliminate this provision and would prohibit cases charging anyone other than individuals who have authorized access to classified material and who have signed a non-disclosure agreement. In other words, members of the general public, including journalists, could no longer be charged under the law as a principal as if they had pulled the trigger.

The bill preserves liability for agents of a foreign power as defined in the Foreign Intelligence Surveillance Act. The specific definition is complicated, but the basic concept is that individuals who are acting at the direction of a foreign power and who are assisting someone who has signed a secrecy agreement are much more likely to be engaged in what we would all consider traditional espionage, and should therefore be easier to charge with an incomplete crime.

For non-foreign agents who havent signed a secrecy agreement, the Wyden-Khanna bill would significantly narrow the potential scope of liability for those who havent themselves pulled the trigger, which is particularly important for journalists. Under current law, there is a significant concern that a national security reporter interacting with a source in a story involving the disclosure of classified information even if eminently newsworthy and in the public interest could be charged as a conspirator or abettor of the disclosure.

Conspiracy can be thought of as a meeting of the minds where two or more people agree to do the bad thing. If I contract out a hit, Im a conspirator, and I can be charged the same as the person who pulls the trigger. Abetting is even broader, and the word abet can encompass just encouraging someone to pull the trigger.

In the context of national security journalism, there is a significant concern that the act of soliciting, receiving, and agreeing to publish government secrets could be the basis of a conspiracy or abetting charge against a journalist.

Thats the basic theory behind most of the Assange charges: that Assange abetted Mannings violation of the Espionage Act by encouraging the leak and agreeing to publish the material. (The indictment prominently quotes Assange as saying curious eyes never run dry when Manning suggested there might not be more material to pull.) It was also the argument the FBI made in a 2011 search warrant for a national security reporters emails in a leak investigation.

The Wyden-Khanna bill would significantly limit the governments ability to charge a national security reporter under this theory.

First, it would require that the defendant directly and materially aid or pay for the commission of the underlying offense by the person who signed a non-disclosure agreement. Granted, the language here could be tighter. It should be read to require participation in the underlying acquisition of the classified information, like giving a source a key or a password. Nevertheless, even in its current form, it would be a significant improvement over current law.

Second, it would require that the defendant act with the specific intent to harm the national security of the United States or benefit any foreign government to the detriment of the United States.

Again, although this language could still be subject to misuse against, say, a columnist critical of U.S. foreign policy, it would significantly limit the scope of existing law and require prosecutors to introduce evidence at trial that the defendant was motivated to harm U.S. national security. National security reporting on newsworthy stories in the public interest particularly stories that reveal improper government actions would almost certainly not meet this intent standard.

Finally, the reform bill includes a provision that clarifies that direct and material aid cannot include counseling, education, or other speech activity or the provision of electronic communications services to the public, which is likely meant to protect news organizations that provide services like SecureDrop for the anonymous collection of potentially classified information.

But doesnt the First Amendment already protect journalists?

There is an argument that the bill actually authorizes a new crime that was until now hypothetical and potentially unconstitutional. In other words, its still up in the air as to whether the public disclosure of information in the public interest by someone who hasnt promised to protect secrets can constitutionally violate the spying laws. By passing this law, the argument follows, Congress is confirming to a court that it believes such activity can be punished under the First Amendment.

This concern should not be discounted, but there are a couple of responses.

One, every court that has addressed whether the existing Espionage Act can constitutionally apply to journalistic sources has found that it can. The arguments in that context are similar to the arguments one would advance in defense of a journalist. Things are, in other words, already quite grim under existing law.

Two, a constitutional challenge would still be available even under the Wyden-Khanna bills reforms. If an aggressive prosecutor attempted to try an opinion writer who merely expressed ideological disagreement with some specific U.S. foreign policy position or action while reporting on classified information, any defendant could still bring an as-applied challenge to the reformed Espionage Act. All laws have to comply with the First Amendment.

While it is true that the fact Congress has spoken on the issue could make a judge more likely to reject an as-applied challenge, the state of the law is so bad and the uptick in journalistic source cases over the last decade so concerning that the improvements proposed in the Wyden-Khanna bill are worth that risk.

Finally, contrary to a lot of conventional wisdom, there is no guarantee that a constitutional challenge to the post-publication punishment of a news organization for disclosing government secrets will succeed. The Pentagon Papers case, for instance, only held that the government cant restrain the publication of secrets, but at least five judges signaled they would uphold the post-publication punishment of a journalist for reporting secrets.

Additionally, the other line of cases news organizations would point to, which hold that a journalist who lawfully acquires information can publish that information without fear of prosecution, even if it has been unlawfully acquired by a source, have never addressed whether that rule applies to the Espionage Act. The most recent Supreme Court case on the question, Bartnicki v. Vopper, dealt only with whether a radio talk show host could be sued for broadcasting an illegally wiretapped conversation.

In sum, the concern that passing reform legislation could be counterproductive is valid, but, on balance, the Wyden-Khanna bill would probably result in stronger protections for journalists than currently exist even under the First Amendment.

What happens if the bill gets worse as it moves through Congress?

Many First Amendment advocates who work in this area have long feared that opening up the Espionage Act could actually make the law worse because national security hawks in both parties could seek to expressly criminalize the public disclosure of government secrets, much like the Official Secrets Act in the United Kingdom.

This concern is, again, well taken. As introduced, the Wyden-Khanna bill would significantly protect journalists from being treated as spies for reporting newsworthy government secrets. Were it amended in a way that would make existing law worse (or significantly decrease the viability of a First Amendment defense), press advocates would almost certainly oppose the bill. But the need for greater protections in this area is pressing and the bill would, if passed in its current form, make the world a better place.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

View post:
Sen. Ron Wyden, Rep. Ro Khanna introduce bill to reform Espionage Act - Reporters Committee for Freedom of the Press

By ZACH MONTELLARO

03/05/2020 10:00 AM EST

Updated 03/05/2020 03:39 PM EST

Editors Note: Morning Score is a free version of POLITICO Pro Campaigns morning newsletter, which is delivered to our subscribers each morning at 6 a.m. The POLITICO Pro platform combines the news you need with tools you can use to take action on the days biggest stories. Act on the news with POLITICO Pro.

Rep. Henry Cuellar (D-Texas) holding off a tough primary challenge headlines the list of downballot Super Tuesday races that were called Wednesday, but many California races are still unresolved.

Mike Bloomberg formally ended his presidential campaign on Wednesday, winnowing the field further still. Meanwhile, Joe Biden was declared the winner in Maine, eeking out a narrow victory.

The Senate is poised to take action on President Donald Trumps Federal Election Commission nominee, which could give the embattled federal election watchdog a quorum. But many Democrats and money-in-politics groups are not happy with the prospective commissioner.

A message from the Partnership for America's Health Care Future:

American patients cant afford the higher taxes, longer wait times and lower quality care that would come with Medicare for All. Dont force American families into a one-size-fits-all government health insurance system. See why.

Good Thursday morning. Email me at zmontellaro@politico.com, and follow me at @ZachMontellaro.

Email the rest of the Campaign Pro team at sshepard@politico.com, jarkin@politico.com and amutnick@politico.com. Follow them on Twitter: @POLITICO_Steve, @JamesArkin and allymutnick.

Days until the March 10 primaries: 5

Days until the Phoenix Democratic debate: 10

Days until the March 17 primaries: 12

Days until the 2020 election: 243

Rep. Henry Cuellar narrowly beat out a primary challenger in a race that was called on Wednesday. | Getty Images

THE LATE CALLS Super Tuesday stretched well into weary Wednesday. I shamelessly stole a colleagues joke to highlight the fact that not all of the downballot races were called on Tuesday and some are still outstanding. Topping the list of races that were called on Wednesday: Cuellar holding off a primary challenge from Jessica Cisneros in TX-28.

A win that tight by Cuellar will likely do little to quell the liberal forces who had pegged the race as the next major opportunity to shake up the Democratic caucus, POLITICOs Ally Mutnick and Sarah Ferris wrote. Her near-miss is likely to embolden a score of liberal primary challengers hoping to take out House Democrats, including two later this month. In Illinois, Democrat Marie Newman is making another run at Rep. Dan Lipinski who, like Cuellar, also opposes abortion rights. And in Ohio, Rep. Joyce Beatty faces a stiff challenge from consumer advocate Morgan Harper. Cuellar, perhaps spooked by the rash of Democratic incumbents who fell last cycle, assembled a formidable campaign apparatus.

But that wasnt the only big race call on Wednesday. In Texas, the DSCC-endorsed MJ Hegar now knows her runoff opponent: Royce West, who edged out Cristina Tzintzn Ramirez for the second runoff spot for the Democratic Senate nomination. And heres the rest of the calls in the races we were watching:

AL-02: Former state Rep. Barry Moore will face businessman Jeff Coleman in the March 31 primary runoff for this safe, red seat.

CA-08: Republican Jay Obernolte secured a spot in November in the red seat. The second spot remains undecided between Democrat Chris Bubser and Republican Tom Donnelly.

CA-10: Freshman Democratic Rep. Josh Harder will face Republican Ted Howze in November.

CA-25: The simultaneous primary and special election remain muddled. Democrat Christy Smith won a spot in the special election runoff, but the other spot (and the two candidates who will face off in November in the regular election) remain uncalled, with Republicans Steve Knight and Mike Garcia battling.

CA-50: In this open, red-leaning seat, Democrat Ammar Campa-Najjar secured his spot in the November election. Republicans Darrell Issa and Carl DeMaio are dueling for the second spot.

CA-53: Democrat Sara Jacobs won a spot in the general election in November. Democrat Georgette Gomez and Republican Chris Stoddard are fighting for the second.

TX-23: Republicans Tony Gonzales and Raul Reyes are officially headed for a runoff in the GOP-held open seat. The winner will face Gina Ortiz Jones, who easily won her primary.

TX-24: Democrats Kim Olson and Candace Valenzuela are headed to a runoff, and the winner will face Republican Beth Van Duyne, who won her primary for the Dallas-area open seat.

TX-32: Republican Genevieve Collins won the Republican nomination outright, avoiding a runoff, and will face freshman Democratic Rep. Colin Allred in November.

SEE YOU LATER Bloomberg officially called it quits on Wednesday, ending his half-billion-plus presidential campaign with little to show for it. Bloomberg huddled early Wednesday morning with his closest advisers in one of his Manhattan offices. Alongside campaign manager Kevin Sheekey, chair Patti Harris and adviser Howard Wolfson, Bloomberg reviewed the final results from the biggest night of the Democratic primary, POLITICOs Sally Goldenberg and Chris Cadelago reported. They saw no path to success. He then opted to drop out of the race and throw his support and potentially his vast resources behind Biden.

More: Bloomberg aides said it was still unclear how hed be involved in Bidens campaign. Advisers on the all-staff call said they are working on a plan for how they'll wind down the campaign. The advisers stressed they built their massive operation to continue the fight against Trump in battlegrounds regardless of whether hes the nominee.

Elizabeth Warrens team is considering ending her campaign. An aide to Warren told POLITICOs Alex Thompson that she was spending Wednesday with her team to assess the path forward. [Campaign manager Roger] Lau wrote [in an email to staff] that [t]his decision is in her hands, and its important that she has the time and space to consider what comes next.

Top allies of Warren and Bernie Sanders are also discussing ways for their two camps to unite and push a common liberal agenda, with the expectation that Warren is likely to leave the presidential campaign soon, The Washington Posts Annie Linskey and Sean Sullivan wrote. Warren allies also talked with Bidenworld, Linskey and Sullivan reported.

TAKING STOCK After a rough Super Tuesday, Sanders is changing his strategy. The decades-long refusal to air negative TV ads is out. Spots highlighting former President Barack Obamas praise of him are in, POLITICOs Holly Otterbein wrote (heres the Biden attack ad, hitting him over social security, and heres the ad featuring Obama). After facing questions for weeks about whether Sanders would shift his message to broaden his base, Sanders campaign co-chair, Rep. Ro Khanna, said his candidate will work to appeal more to older voters and mainstream Democrats.

More from Holly: Sanders aides still very much see a path to victory, however. They believe he has a shot at winning five of the six states that vote next week, including Michigan and Washington, which have the days largest delegate hauls.

Team Bidens response to the change in tune from Sanders? Remember the last primary. Framing Sanders as a divisive party outsider who won't accept defeat, the Biden campaign pointed to his bitter Democratic primary fight four years ago with his party nemesis, Hillary Clinton. That ended with a chaotic nominating convention and Donald Trumps election months later, POLITICOs Marc Caputo and Natasha Korecki wrote.

NEXT ONE UP Michigan is the biggest prize in next Tuesdays primaries, both in terms of how many delegates are awarded and for its political value. It was Michigan where Sanders engineered a primary day miracle four years ago, upsetting Hillary Clinton and imprinting his populist agenda on the industrial Midwest, POLITICOs David Siders and Holly wrote. But Super Tuesday laid bare the full force of the momentum Biden drew from winning South Carolina, prompting moderate Democrats to coalesce around him and persuading many undecided voters to break his way.

HOW HE DID IT Bidens support on Super Tuesday was a primary coalition he and other Democrats have yearned to build for a year, fusing domination among black voters with strong support from whites that crossed over class lines, POLITICOs Laura Barrn-Lpez wrote. Latino voters were, however, a particularly strong group for Sanders.

WITH FRIENDS LIKE THESE Trumps relationship with Florida Gov. Ron DeSantis is souring in the crucial swing state. DeSantis is no verbal knife fighter, something Trump expects from his inner circle, and the onetime Fox News stalwart has ceased appearing on the cable channel, POLITICO Floridas Matt Dixon writes. And with Election Day just eight months away, his pick to lead the Republican Party of Florida resigned on Tuesday after failing to deliver crucial get-out-the-vote infrastructure. DeSantis defenders cast the chatter as a sour-grapes narrative.

DELEGATE HEADCOUNT Before Bloomberg (and Pete Buttigieg and Amy Klobuchar) dropped out, they did manage to win delegates to the national convention. So what happens to their delegates? It is a lot more difficult than simply adding their totals to Biden, I wrote but it is a complicated dance that will only really matter if someone else cant secure an outright majority.

WHAT GIVES? Bloomberg essentially ran out the clock on transparency for his financial records after he asked for (and was granted) extensions on filing his public disclosure forms, the Center for Public Integritys Dave Levinthal wrote, dropping out before submitting it.

ENDORSEMENT CORNER Congressional endorsements continue to pour in for Biden. Sen. Kyrsten Sinema (D-Ariz.) backed him, as did Florida Reps. Kathy Castor, Lois Frankel and Ted Deutch, Illinois Mike Quigley, Robin Kelly and Bill Foster and New Jerseys Andy Kim. (This is Kims third endorsement of the cycle, having previously backed Cory Booker and then Buttigieg.) Sarah and Heather Caygle also have more on the celebration among some House Democrats on Bidens surge (and Sanders speedbumps) on Super Tuesday.

THE ENFORCERS? The deadlock at the Federal Election Commission could soon come to an end. Trump nominated Texas attorney Trey Trainor to be a FEC commissioner. That itself is not new; Trainor has been nominated in the past, and the Senate has let his nomination languish. But this time, the Senate is poised to take action. The Senate Rules Committee will hold a hearing on Trainors nomination on March 10, the first step toward Trainor actually being confirmed (the movement was first reported by the CPIs Levinthal, who has been all over the FECs trials and tribulations for awhile now). Democrats are, however, furious at the break in tradition, which typically sees a bipartisan pair of nominees put forward, Roll Calls Kate Ackley wrote.

But if Trainors hearing goes smoothly, and he is eventually confirmed, there would once again be a quorum at the FEC. The countrys chief election watchdog has languished without one for more than six months, being unable to take action on a bevy of things (heres what I wrote back in December about the lack of a quorum). But some campaign finance-focused groups are not happy about the movement on Trainor. Reopening the Federal Election Commission with a nominee who does not think we should enforce the nations campaign finance laws will only make matters worse, Meredith McGehee, the executive director of Issue One, said in a statement. (Trainor, generally, has fought for less campaign finance regulation, having publicly questioned the value of disclosing donors.)

The Institute for Free Speech which was founded by former FEC commissioner Bradley Smith and argues against many campaign finance-related restrictions on First Amendment grounds praised Trainor as a well-qualified practitioner.

THE SENATE MAP Democrats are poised to land a major recruit in the battle for the Senate: Term-limited Montana Gov. Steve Bullock, who had previously (and adamantly) denied that he was going to run. In recent days, Democrats are starting to believe the two-term governor could jump in the race to challenge GOP Sen. Steve Daines, a move that would expand the Senate map for Democrats by giving them another battleground target in their bid to take back the chamber, POLITICOs James Arkin and Marianne LeVine reported. Bullock has not yet indicated publicly an interest in the race, and it is not a done deal that Bullock will run, according to multiple Democratic sources. (The New York Times Jonathan Martin first reported Bullocks apparent change of heart.)

We have some polling numbers in the Georgia special Senate election, with Rep. Doug Collins (R-Ga.) and Sen. Kelly Loeffler (R-Ga.) battling it out. The University of Georgia School of Public & International Affairs poll has Collins at 21 percent to 19 percent for Loeffler. Democrat Matt Lieberman is at 11 percent and the DSCC-endorsed Raphael Warnock is at 6 percent, with a handful of other candidates below him (1,117 likely general election voters; Feb. 24-March 2; +/- 2.9 percentage point MOE).

Sen. Rick Scott (R-Fla.) is raising some big cash for his new colleagues. The first-term senator is hosting three events Sunday and Monday, benefiting six Senate Republicans on the ballot this year and one GOP challenger, James reported.

We approached, but did not quite hit, former Attorney General Jeff Sessions worst nightmare as he hopes to return to the Senate in Alabama. Trump retweeted an AP tweet announcing that Tommy Tuberville, Sessions rival for the nomination, advanced to a runoff on Wednesday morning. He followed it up with a quote-tweet of the POLITICO story saying Sessions finished well short of a majority in a primary: This is what happens to someone who loyally gets appointed Attorney General of the United States & then doesnt have the wisdom or courage to stare down & end the phony Russia Witch Hunt. Thats not exactly a Tuberville endorsement, but it is getting awfully close to one.

THE GOVERNATORS A race I neglected to mention in Wednesdays Score, because the primary was entirely uncompetitive: North Carolina governor. Republican Lt. Gov. Dan Forest emerged from his primary fairly easily and will face Democratic Gov. Roy Cooper in whats expected to be one of the most hotly-contested gubernatorial races this year.

WAY DOWN BALLOT The Democratic Legislative Campaign Committee announced that it raised $2.6 million in February, its best February ever.

THE OUTSIDE GROUPS Tom Lopach, a former Bullock aide and former DSCC executive director, was named the president and CEO of the Voter Participation Center and Center for Voter Information.

A message from the Partnership for America's Health Care Future:

Creating a one-size-fits-all new government health insurance system like Medicare for All would mean serious consequences for patients. We cant afford to have everyones income taxes doubled to start over with a Medicare for All system that would put politicians in charge of health care. Get the facts.

CODA DYSTOPIAN HEADLINE OF THE DAY: Bloomberg attracted few votes but his ads still grabbed the attention of many kids, from The Washington Post.

CORRECTION: An earlier version of Morning Score misstated the DLCC's fundraising record. This February was the best February the committee has ever had.

The rest is here:
Cuellar holds off primary challenge, and other late calls - Politico

San Francisco is expected to pay Bryan Carmody $369,000 to settle a claim the freelance journalist filed last year after police raided his home as part of a leak investigation.

Last April, the San Francisco Police Department asked Carmody to reveal the source of a leaked police report concerning the death of public defender Jeff Adachi. Carmody refused, and a month later officers came to his home with search warrants, seizing computers, cameras and phones while FBI agents questioned the journalist.

All of the warrants were later nullified, deemed illegal under Californias shield law, which allows journalists to protect confidential sources and materials.

Filed last August, Carmodys claim against San Francisco is related to the illegal warrants and the conduct of the police department in carrying them out, according to San Franciscos resolution to settle. Courthouse News Service reported on Tuesday that the resolution is expected to head to the San Francisco Board of Supervisors Government Audit and Oversight Committee. If approved, it will then move to the full board for a vote.

The raid of Carmodys home made national news, sparking outrage among journalists and press freedom advocates.

Any search targeting a journalists confidential material is a particularly egregious affront to First Amendment rights and should be investigated thoroughly, Reporters Committee Executive Director Bruce Brown said in a statement last May. Mr. Carmodys devices and work product should be returned immediately.

When Carmody moved to have his equipment and materials returned, Reporters Committee attorneys gathered a coalition of 60 media organizations and sent a letter supporting his motion to the California Superior Court.

The Reporters Committee has also pursued records related to the presence of the FBI during the raid. Though FBI personnel did not participate in the search itself, the agency has confirmed that its agents were on site to question Carmody.

According to an FBI document obtained through a Freedom of Information Act lawsuit filed by the Reporters Committee in September, those agents knew that Carmody was a journalist. The Justice Department guidelines generally require authorization from the attorney general before a member of the news media can be questioned. But its unclear whether these guidelines were followed here.

The Justice Department policies were put in place to handle criminal investigations in a careful and thoughtful manner based on a particular set of circumstances and provide meaningful protections for newsgathering, policy analyst Melissa Wasser and Stanton Foundation National Security Fellow Linda Moon wrote in October. The public deserves to know whether these policies were followed, and if they werent, the FBI needs to provide public justification.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Continued here:
San Francisco expected to pay $369,000 settlement to Bryan Carmody - Reporters Committee for Freedom of the Press

Carl Szabo, vice president and general counsel, NetChoice

What youre seeing is a misunderstanding of what Section 230 is, what it does and its necessity, Szabo said. None of the sponsors of this act have supported existing congressional efforts to explore the unintended consequences of SESTA, a bill passed in 2018 that amends Section 230 to include provisions waiving liability protections for online platforms that host illegal sexual content. They seem unwilling to recognize that SESTA has harmed the very victims it has tried to help. Until we understand the harm of the only other amendment to Section 230, it is premature to consider this legislation.

Patrick Trueman, president and CEO, the National Center on Sexual Exploitation

Tech companies dont do what is reasonable to do and what every parent would like them to do and what Congress would like them to do, Trueman said. Congress is giving them one last chance before they eliminate the immunities afforded by Section 230.

They can complain all they want about that, but they had their chance and this is their last best hope.

Emma Llans, director of the Center for Democracy and Technologys Free Expression Project

There are pretty conflicting messages today about how to address children sexual abuse materials online, Llans said, noting the Thursday release of voluntary principles from a coalition including a group of U.S. agencies, along with the governments of Britain, Canada, Australia and New Zealand, that were crafted in conjunction with several technology companies.

Its a bit hard to understand why the Graham bill would be necessary if there is in fact this recognition that there is a lot going on and, in fact, discussion already about what best practices are not only between the companies and the U.S. government but also the other countries.

India McKinney, director of federal affairs, the Electronic Frontier Foundation

Regarding the commission this bill creates, McKinney said: Giving the ability to create law to an unelected body is really problematic, and making best practices mandatory is also really problematic, and we think that runs into some First Amendment problems.

Some of the bill sponsors have said to us in the past that they arent necessarily interested in going out and looking at encryption, but its clear to us that the DOJ, and specifically the attorney general, are.

This story has been updated to include additional comments.

Continue reading here:
EARN IT Act: Instant Reaction - Morning Consult