Monthly Archives: February 2022

The Supreme Courts free-speech docket this term features few obvious blockbusters, unless you have strong feelings onbillboard policy. But inEgbert v. Boule, a case set for argument this March, the Court will answer a somewhat arcane question that could have important consequences for press freedoms: whether federal officials can be held personally liable for damages when they retaliate against individuals for exercising First Amendment rights.

Your newsletter writers, alongside several colleagues at the Reporters Committee,filed a brieflast week to explain why they can and why the issue should matter to members of the news media.

The notion that there should be a remedy whenever the Constitution is violated is an old one. AsMarbury v. Madisonput it, our government would no longer deserve to be termed a government of laws, and not of men if the laws furnish no remedy for the violation of a vested legal right. But in practice, even clear violations routinely go without redress. One reason why: While Congress long ago passeda statutethat allows victims to suestateofficials for damages when they infringe on federal rights,no counterpart existsto hold federal officers accountable as well.

In a 1971 case,Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court recognized that that fact risked creating something of a legal black hole. Sometimes, of course, the courts can safeguard rights through remedies other than damages by barring the government from enforcing an invalid law, say, or by throwing out evidence that was obtained illegally. But on other footings, the choice will be either as Justice John M. Harlan II put it in a separate opinion damages or nothing.

Webster Bivens, for instance, was illegally searched and arrested but never prosecuted, so he would never have (or need) a chance to ask a court to exclude the fruits of the governments unconstitutional search. On that footing, the Court concluded, courts have the power to hear a claim for damages against the rogue officer, even in the absence of action from Congress, to ensure that those rights dont go entirely without redress.

Soon afterBivens, a number of federal courts recognized that the same logic could apply to First Amendment violations: once aprotest has been broken up, a court can hardly order the Park Police to put it back together again. In the years since, though, the Supreme Court has soured on so-called Bivensremedies and has largely declined to recognize them in factual scenarios other than the one presented inBivensitself. Chastened, the lower courts have also retreated. Now, petitioner Erik Egbert a border agent who allegedly assaulted respondent Robert Boule and then retaliated against him for reporting that claimed misconduct has asked the Court to shut the door to newBivensremedies entirely, including in the First Amendment context.

We filed afriend-of-the-court briefin support of Boule to urge the Court to preserve that recourse for individuals whose First Amendment rights are violated by federal retaliation. After all, when retaliation chills reporting when, for instance, an unlawful arrest drives a journalist from the scene of a newsworthy event the impact on First Amendment freedoms is irreversible. Nothing can, at that point, restore to the public news never gathered or photos never taken. As a result, the right to report depends critically on deterring abuses before they happen, and only the threat of damages for the rogue officer can play that role. To wipe out that safeguard would give the government a gratuitous green light to punish the press for performing its constitutional function.

Argument in the case will be held on March 2; as you can imagine, we plan to tune in.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.

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Supreme Court should ensure First Amendment rights have remedies, Reporters Committee coalition argues - Reporters Committee for Freedom of the Press

The hosts of "CBS Mornings" piled on podcast star Joe Rogan, who is the target of liberals in media and entertainment to be deplatformed by Spotify.

Spotify has been facing growing pressure to remove Rogan from its service over allegations that his popular show has been peddling COVID "misinformation," causing musicians like Neil Young and Joni Mitchell to pull their music from the streaming giant.

GLENN GREENWALD: IF LIBERALS FORCE SPOTIFY TO DUMP JOE ROGAN, NOBODY IS SAFE FROM PETTY-TYRANT TACTICS

While covering "Spotify's misinformation fight," CBS host Tony Dokoupil acknowledged "these musicians are not going to win this battle," but appeared to express solidarity with them.

Joe Rogan, the popular podcast host on Spotify, has emerged as Public Enemy No.1 among liberals. (Photo by Michael S. Schwartz/Getty Images)

"You have a First Amendment right to say what you want. You don't have a First Amendment right to appear on a platform as large as Spotify. That's the issue," Dokoupil said. "Joe Rogan is correct that the medical world gets stuff wrong, but there's a process by which the medical world corrects itself, and that process is not interviewing guys on the fringe of the medical world on your massive platform. That's called irresponsible. Its not censorship."

"Editors are not censors, they're ensuring quality," Dokoupil added.

Co-host Gayle King then chimed in, suggesting the solution to combat Rogan isn't simply to just "turn it off."

"The thing is, a lot of people do listen to it, and they're getting false, incorrect information and that's why it seems so dangerous," King said.

JOE ROGAN BREAKS SILENCE AFTER NEIL YOUNG'S SPOTIFY CONTROVERSY

"He has a huge reach. He has a huge reach," co-host Nate Burleson emphasized.

"And it matters," Dokoupil said, later adding, "it's a life or death issue. Thats why its in a special category."

JOE ROGAN QUESTIONS EVERYTHING -- "Podcast" -- Pictured: (l-r) Joe Rogan, Duncan Trussell -- (Photo by: Vivian Zink/Syfy/NBCU Photo Bank/NBCUniversal via Getty Images)

Spotify announced that it will begin to put a disclaimer at the beginning of Rogans show when he discusses COVID.

Rogan himself addressed the uproar thanking Spotify for its support and expressing approval of the added disclaimer to his podcast.

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He also vowed to invite guests to balance out the controversial COVID views that are said by others on the podcast.

Spotify previously struck a whopping $100 million deal for the exclusive rights to "The Joe Rogan Experience."

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CBS hosts say Joe Rogan doesn't have 'First Amendment right' to be on Spotify: 'It seems so dangerous' - Fox News

An Oregon church is suing the city of Brookings, Oregon, over limits the local government has imposed on how often it can serve free meals to the poor. A federal lawsuit filed Friday by St. Timothy's Episcopal Church argues that Brookings' regulations on "benevolent meal service" unconstitutionally restrict its religious mission to feed the hungry.

"What we're doing is what churches do. Churches feed people," Rev. Bernie Lindley of St. Timothy's toldReason last year, shortly after the Brookings ordinance passed. "To tell a church that they have to be limited in how they live into the Gospel of Jesus Christ is a violation of our First Amendment right to freely practice our religion."

St. Timothy's has run a soup kitchen several days a week since the 1980s, as have other churches in Brookings. When those churches shut down their meal service during the pandemic, St. Timothy's extended its effort to six days a week.

Seeing more people at the church more days a week didn't sit well with some of the neighbors. They complained in an April 2021 petition to the city government that St. Timothy's soup kitchenand its participation in the city's safe parking program, whereby it lets people live in their cars on the church parking lotwas bringing crime and vagrancy to the area.

In response, the city council passed an ordinance in October that said churches and nonprofits in residentially zoned areas could offer free meal service only two days a week. And to do that, they needed special conditional use permits.

On paper, this was actually a liberalization of Brookings' zoning rules. Because state health authorities regulate soup kitchens like restaurants, and restaurants are a commercial use, soup kitchens were technically prohibited in the city's residential zones. And all of Brookings' churches are located in residentially zoned areas.

City Manager Janelle Howard says the ordinance was intended as a compromise: It legalized technically prohibited soup kitchens while mollifying residents' complaints about the nuisances they caused.

In practice, though, the churches' charitable work had been unregulated before. The ordinance's actual effect was to pave the way for a crackdown.

Lindley and St. Timothy's participated in early talks with the city about its soup kitchen ordinance, but they dropped out after it became clear that Brookings intended to limit the number of days the church could offer meals.

The ordinance became enforceable last week, potentially opening St. Timothy's up to fines and other sanctions. To prevent that, the church and the Episcopal Diocese of Oregon filed a lawsuit in the U.S. District Court for the District of Oregon.

The complaint argues that Brookings' soup kitchen regulations violate the U.S. and Oregon constitutions' protections of free expression and the free exercise of religion. It also claims that the regulations' vague description of "benevolent meal service" and unclear potential sanctions violate the U.S. Constitution's due process protections.

Lastly, it argues that Brookings is violating a federal law limiting state and local governments from adopting land use regulations that impose a "substantial burden" on "religious exercise."

"We've been serving our community here for decades and picking up the slack where the need exists and no one else is stepping in," Lindley declared in a statement. "We have no intention of stopping now and we're prepared to hold fast to our beliefs. We won't abandon the people of Brookings who need our help, even when we're being threatened."

Original post:
Lawsuit: Crackdown on Church Soup Kitchens Violates the First Amendment - Reason

This interview will be on St. Louis on the Air at noon Tuesday. This story will be updated after the show. You can listen live.

On a recent Saturday, local high school teacher Tony Nipert deboarded a MetroLink train at the Central West End station while enjoying one of his favorite hobbies: exploring St. Louis. As he exited the train, he decided to snap a quick photo of the train departing toward downtown, and pulled out his phone.

After taking a quick shot of the moving train, he decided to take one more photo because the newly refurbished station was looking so good.

I love how the buildings kind of rise up out of the station. So I got back at a distance, and at this point nobodys on the platform, recalled Nipert, who at the time was working on a piece for Next STL about how MetroLink is safer than many people think. Its kind of empty except for the two security guards. And I take a big landscape photo of it.

About two seconds after he nailed his shot, Nipert told St. Louis on the Air, a security guard yelled at him.

She said, Who are you taking a photo of? And I said, Oh, Im taking it of the platform, and I gestured that I was trying to do that. And she said, You cant do that. And so, you know, I didnt know the rules, Nipert explained. I thought maybe I was in the wrong, so I apologized and walked off.

While Nipert shrugged off the interaction as no big deal, he added that he was surprised to learn Metro Transit wouldnt want people taking photos of the transit system which he thinks of as part of the public commons.

Evie Hemphill

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St. Louis Public Radio

So that was one of the weird things, he said. And I thought to myself [that] maybe theyve got some rules about customer privacy or something and theres a worry about something like that.

In fact, Metro does list rules on its website for photography and video along the transit system. While the agency notes that such images are fun ways to commemorate your trip on Metro, it asks riders to keep from interfering with Metro service and indicates that lights, tripods and other types of equipment are not permitted and that such activities may be limited for security, safety or customer convenience.

The transit agency outlines separate rules for journalists and commercial photographers, saying that such people must first contact the Metro Communications Department for approval.

Those distinctions raise some questions and concerns for Lisa Hoppenjans, assistant professor of practice and director of the First Amendment Clinic at Washington University School of Law.

After all, photography is a form of expression, and as such connects to First Amendment rights enshrined in the U.S. Constitution. Even so, Hoppenjans acknowledges that such rights are not absolute.

On Tuesdays show, Hoppenjans will join host Sarah Fenske for a closer look at what the law says about photography in public places.

Have you ever tried to take a photo in a public place, only to be told it's not allowed? What questions or hypotheticals do you have for First Amendment lawyer Lisa Hoppenjans?

Leave us a voicemail at 314-516-6397, email talk@stlpr.org or share your thoughts via our St. Louis on the Air Facebook group, and help inform our coverage.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill, and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Photos, public space and the 1st Amendment - St. Louis Public Radio

This is an opinion column

Brookside the tiny hamlet outside of Birmingham now infamous for its interstate patrols, aggressive policing and possibly phantom traffic citations might have more to worry about than just Lt. Gov. Will Ainsworths call for an official audit or national news outlets focusing their attention on the town of fewer than 1,300 people.

And thats because the town, by way of its police force and now former Police Chief Mike Jones, may have violated the First Amendment rights of those who complained about arrests, tickets and other traffic stops.

As John Archibald reported Thursday, the Brookside Police Department apparently has a consistent practice of patrolling not just the highways of Alabama but also the byways of social media and retaliating against the departments critics. Two things really stuck out to me as a First Amendment scholar in that most recent piece: one woman, Michelle Jones, who cited a mysterious phone call from a Brookside detective claiming she issued threats, incited a riot and slandered the Brookside Police Department on Facebook and a Brookside man who said, after a similar post, an officer told him the chief was pretty upset and any more backlash like that towards his police department and itll be far worse than a ticket.

Those words should give us all pause and cause for concern at the prospect of the police powers of the state being wielded to silence speech. For while the text of the First Amendment reads, Congress shall make no lawabridging the freedom of speech, we have thankfully interpreted that to mean all agents of government acting under the color of law from the president, to the governor, to public school employees and, yes, even police officers must respect free speech rights.

However, lest anyone start shouting about fires and crowded theaters, there are certainly limits to what the First Amendment protects, and those limits include threats and incitement. It is doubtful, though, that Jones Facebook posts rose to the level of what is constitutionally actionable. Inciting a riot via Facebook sounds like a nigh impossibility, and thats not even considering the limitations under Brandenburg v. Ohio that the state can only punish speech designed to produce imminent lawless action. An online threat is more likely actionable generically, but Jones unless she posted something that a reasonable person would view as a serious expression of an intention to commit violence against the Brookside Police Department was again likely engaging in protected speech.

And if the departments staff truly feels slandered (quick point of order: they would have be libeled on Facebook, the difference there being spoken versus something published), the answer there is for a specific individual to sue Jones for defamation not to harass her via telephone.

But its that second anonymous complaint that gets at the real heart of this banal evil. There is no right in this country for a police chief to not be upset about comments made publicly or to somehow escape a dreaded and terrible backlash. If the First Amendment is to mean anything if were going to have the freedom of speech in this country and in this state it has to mean that police departments cannot threaten critics of their official conduct.

That last point was made clear some 60 years ago in a landmark case from right here in Alabama. In New York Times v. Sullivan, Montgomery Public Safety Commissioner L.B. Sullivan attempted to recover damages from paper after it printed a defamatory ad written by a Martin Luther King Jr. fundraising committee. While Sullivan won in Alabama courts, his judgment was overturned by the Supreme Court as it established the actual malice rule, a standard that works to protect the right to criticize public officials and public figures so long as speakers dont act with a reckless disregard for the truth.

Did Jones actually threaten, incite or defame? Did the Brookwood man bring down some nefarious shroud of untruth upon his hometown police department? Most likely not. What we appear to have is a pattern and a practice of the government silencing speech that it does not like.

And whether thats the federal government, the state government or the people running Americas most notorious (for now) speed trap, thats something we simply cannot have in our country.

Will Nevin, J.D., Ph.D., is an assistant professor and program coordinator for Communications Media at Alabama A&M University.

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Brookside PD ran afoul of good policing practices and possibly the First Amendment - AL.com

Editor's Note: This post also appears on Just Security.

The U.S. governments prepublication review process for written works by certain current and former government officials is a mammoth system of prior restraint that impacts the speech of millions. We and others have highlighted the problems with this system, including its scale, lack of adequate process, arbitrariness, violation of the First Amendment, massive chilling effect, and adverse consequences for national security.

The challenge has been figuring out a way to fix the system. Almost six years ago, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concerns with the pre-publication review process and directed the intelligence community (IC) to issue a policy within 180 days that was more consistent with due process and the First Amendment. Though the IC normally takes steps to comply with such non-legislative HPSCI directives as a matter of comity, six years later the IC has not implemented a change in prepublication policy. Another route to change litigation to challenge the constitutionality of the prepublication review system has been rare. The main reason is the widely held belief that the Supreme Court blessed the modern massive prior restraint system in the 1980 case Snepp v. U.S.

This belief is false: the Supreme Court did no such thing in Snepp. In explaining why this is so, this post and a subsequent one draw on an amicus brief that we filed in support of the pending cert. petition in Edgar v. Haines. The petition asks the Court to overrule Snepp or to clarify that lower courts should not read the decision to preclude meaningful scrutiny of the federal governments current prepublication review regime under the First Amendment. The thrust of our amicus brief is that Snepp is an illegitimate foundation for todays prior restraint system. (David Zimmer and Benjamin Hayes of Goodwin Procter, to whom we are very grateful, drafted and filed the brief, which we rely on here in part.) The first reason for this conclusion, discussed in this post, is that the Supreme Court in Snepp decided the foundational First Amendment issue in a brief footnote in the procedural history section of a shadow docket summary reversal without merits briefing or oral argument, and with other procedural irregularities. The second reason, discussed in subsequent posts, is that the illegitimate decision in Snepp became the foundation for a massively broader, different-in-kind, and worse system of prepublication review than was in place at the time of Snepp.

The Background to Snepp

The prepublication review system in place when Snepp was decided in 1980 is nothing like the one that today restricts the speech of many millions of current and former government employees. Prepublication review began in the 1950s as a small and casual system in the Central Intelligence Agency and the National Security Agency. With the increase in writing by current and former officials amidst the 1970s upheavals sparked by Watergate and the Church Commission, the CIA in the late 1970s established a Publication Review Board to review the writings of current and former agency officials. In 1980, the year Snepp was decided, only 148 publications were submitted for review.

The Snepp decision grew out of former CIA analyst Frank Snepps publication of a book about CIA activities that Snepp declined to submit to the Publication Review Board. Snepp thus defied his employment contract pledge to not . . . publish . . . any information or material relating to the [CIA], its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the [CIA]. The Government sued Snepp to enforce the agreement and obtain a constructive trust for the Governments benefit on Snepps profits. The district court enjoined Snepp from future breaches of his secrecy agreements, imposed the requested constructive trust, and dismissed in a few sentences a claim that Snepp had raised under the First Amendment. The Fourth Circuit also rejected Snepps First Amendment argument. But it declined to impose a constructive trust and reversed the district court on that issue.

Snepp filed a petition for a writ of certiorari that raised the issue of whether a system of prior restraint sanctioned by the court of appeals impermissibly burdens the First Amendment rights of thousands of government employees and the public. The government opposed the petition but filed (separately) a cross-petition conditioned on the grant of Snepps petition. The governments cross-petition stated that the contract remedy provided by the court of appeals appear[ed] to be sufficient . . . to protect the [CIAs] interest. The only reason for filing the cross-petition, the government explained, was so the Supreme Court may review the entire judgment of the court of appeals if it granted Snepps petition. The government made clear that, [i]f [Snepps] petition . . . is denied, this petition should also be denied. The constructive trust issue, the government made clear, was not independently certworthy.

Snepps Illegitimacy

What this Court did next was highly irregular, as our brief says. Three months after cert-stage briefing closed, the Court issued a per curiam opinion without oral argument and without any merits briefing. The Supreme Court summarily reversed the Fourth Circuit on the constructive trust issue that the government said did not warrant independent review, and, in a footnote in the procedural history section of the opinion, it addressed the issue on which Snepp had sought certiorari. The totality of the Courts First Amendment analysis, in footnote 3, is as follows (citations omitted):

[This] Courts cases make clear thateven in the absence of an express agreementthe CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. . . . The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. The agreement that Snepp signed is a reasonable means for protecting this vital interest.

These three sentences became the sole foundation of all subsequent First Amendment scrutiny of prepublication review.

What made Snepps First Amendment discussion irregular was not (just) that it occurred as a brief aside in a per curiam summary reversal on another issue (the constructive trust). As Justice Stevens explained in his three-Justice dissent, the decision contained other unprecedented elements.

Justice Stevens noted that the majority obviously does not believe that Snepps claims merit this Courts consideration, for they are summarily dismissed in a footnote. The Courts cursory treatment of the First Amendment issue, Stevens added, makes clear that Snepps petition would not have been granted on its own merits. Against this background, Stevens argued that it was highly inappropriate for the Supreme Court to grant the Governments conditional cross-petition while in essence denying Snepps petition. In other words, it was inappropriate to grant Snepps petition, which was independently uncertworthy, only to reach an issue that the government said in its cross-petition need not be reviewed, since its interests were adequately protected on other grounds. The Court had reach[ed] out to decide a question not necessarily presented to it.

The context of these untoward procedural shenanigans made them much worse, since the Court in its throwaway footnote fashioned a drastic new remedy . . . to enforce a species of prior restraint on a citizens right to criticize his government. Justice Stevens accurately predicted how the government would deploy the new reasonableness standard for prior restraints: the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. Justice Stevens acknowledged the national interest in maintaining an effective intelligence service and the possible need for some system of prior restraint. But he bemoaned the fact that this critical First Amendment issue was decided in the absence of full briefing and argument.

So too did Archibald Cox in the Harvard Law Review. One would have supposed that the extent of the governments authority to silence its officials and employees and thereby deprive the public of access to information about government activity was not too obvious to deserve deliberate judicial consideration, he said. Diane Orentlicher noted at the time that the majoritys summary treatment of the first amendment issues raised by Snepp and its decision to forego oral argument and briefs are particularly noteworthy in view of the fact that Snepp was the first occasion on which the Supreme Court considered the enforceability of the CIA secrecy agreement. Unfortunately, it was also the last occasion on which the Court addressed the issue. For over four decades, Snepps footnote has governed.

* * *

We have not said a word in this post, and we do not say a word in our brief, about how out of step Snepps reasonableness test is with the Courts First Amendment, and especially its prior restraint, jurisprudence. That issue is fully covered in the petition. The emphasis in our amicus brief is on the procedural context of Snepp and the decisions original legitimacy. One would think that the colossal system of prior restraint that inheres in the governments prepublication review system would have been subject to careful scrutiny from this Court, the Introduction to our brief notes. This is especially so since, as the Supreme Court has emphasized, [a]ny system of prior restraint . . . bear[s] a heavy presumption against its constitutional validity. To the contrary, as our brief explains, the federal governments publication-review edifice rests on the shakiest of judicial foundations: a footnote in the procedural history section of a case this Court decided without merits briefing or oral argument. This is one important reason why Snepps drive-by constitutional ruling should not be the last word on this vitally important issue.

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Prepublication Review and the Quicksand Foundation of Snepp - Lawfare