Category Archives: First Amendment

There was plenty of Trump-related news for Stephen Colbert to get to on Tuesday night: the GOPs latest attempt to pass the American Health Care Act, that call with Vladimir Putin (You know things are bad when Putin is the voice of restraint), the rolling back of Michelle Obamas healthy school lunch program. But the biggest news for the Late Show host continued to be the presidents proud dismissal of the Constitutionin this case, the First Amendment.

They want to get rid of the First Amendment? Colbert asked, after playing a tape of Reince Priebus saying the administration was looking at changing national libel laws. Stop the presses! Seriously: Stop the presses. In fact, the Late Show exclusively revealed a draft of the administrations proposed change, and it was, lets say, quite Trumpian:

Go here to see the original:
Stephen Colbert Previews Trump's Proposed Changes to the First Amendment - Slate Magazine (blog)

MSNBC's Rachel Maddow told NBC's Seth Meyers that"its a dangerous time for the first amendment and the free press" under President Trump.

Theres never been a president who is more addicted to news about himself and whos more responsive to the news that he supposedly thinks is so worthless, said Maddow on "Late Night." So its a weird tension."

"Its a dangerous time for the First Amendment and the free press in this country," she continued. "At the same time, were oddly influential with the guy who wants to kill us.

I talked to him during the primaries. He was an announced candidate, said Maddow, who indicated Trump's handlers initiated the off-the-record call in advance of a possible on-the-record interview.

I had this conversation with him. Id sort of said he had good chances against his Republican primary opponents and we kind of dished dirt on all the things he thought was wrong with all his Republican primary opponents.

The Maddow interview with Trump never happened, as the candidate mostly did phone interviews on MSNBC with the "Morning Joe" team of Joe Scarborough and Mika Brzezinski.

Trump has not appeared on the network in any capacity since May of 2016 after a falling out with the early morning hosts.

A recent analysis conducted by The Intercept shows Maddow dedicated 53 percent of her highly rated program over a recent six-week stretch to Russia and possible ties to Trump.

Maddows Russia coverage has dwarfed the time devoted to other top issues, including Trumps escalating crackdown on undocumented immigrants (1.3 percent of coverage); ObamaCare repeal (3.8 percent); the legal battle over Trumps Muslim ban (5.6 percent), a surge of anti-GOP activism and town halls since Trump took office (5.8 percent), and Trump administration scandals and stumbles (11 percent)," the analysis reads.

The breakdown was conducted between Feb. 20 and Mar. 31.

During that stretch, "The Rachel Maddow Show" enjoyed its best ratings in nearly a decade, easily topping CNN and finishing at the top of all of cable news for four consecutive weeks throughout the month of March.

For the month of April, "The Rachel Maddow Show was the second-most-watched program in cable news, only behind the combined 8 p.m. ET programming of "The O'Reilly Factor," which went off the air on April 18, and "Tucker Carlson Tonight," which moved to 8 p.m. ET on April 24.

Overall, MSNBC was the second-most-watched network in basic cable for the third straight month, trailing only Fox News.

The rest is here:
Maddow: 'It's a dangerous time for the First Amendment' - The Hill

White House Chief of Staff Reince Priebus has revealed that President Trump is considering amending or even abolishing the First Amendment over claims of fake news by the mainstream media.

Lets look at this closely: yes, some mainstream news is exaggerated to get more viewers and misinformation can slip through, but to even think about changing the First Amendment is a dangerous idea.

Trump has already been mass-tweeting about certain publications that criticize him, including the New York Times and The Washington Post, but this is beyond firing back at media coverage: this is taking away the right to free speech and the right to a free press.

The Trump cabinet is always doing interviews like this, bringing up fake news as if its a recurring issue. Most news organizations do work hard to put out quality (and factual) stories; its the criticism that Trump cant stand, and why this is even being discussed.

In answering a question about whether Trump would actually go about changing the libel laws, Priebus responded, I think its something that weve looked at. How that gets executed or whether that goes anywhere is a different story.

This is alarming, especially when the entirely of the Trump cabinet have repeated these talking points about fake news over and over again. They are trying their hardest to spread a message that the news can no longer be trusted.

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SHOCK: Trump Considering 1st Amendment Clampdown | HuffPost - Huffington Post

McKesson files motion to vacate Judge Griffen's temporary restraining order, dismiss case

Michael Buckner, KTHV 3:35 PM. CDT May 03, 2017

LITTLE ROCK, Ark. (KTHV) - After the Arkansas House of Representatives passed a resolution allowing for legislators to consider an impeachment, Judge Wendell Griffenhas responded to what he says is an effort to impeach him.

The resolution was introduced Tuesday and was passed on Wednesday changed the House rules to consider impeachments. State Senator Trent Garner (R-El Dorado) has called Griffen'sruling on the McKesson case and his subsequent appearance outside the Governor's Mansion a "mockery of our judicial process." Garner thinks the judge should be removed from his duties due to what he calls "gross misconduct."

In response, Griffenwrote a post on his personal blog on the passing of the resolution to change House rules which he alleges is in relation to him. He began his post by quoting Frederick Douglass, a famous black abolitionist. The quote reads, "There is no Negro problem. The problem is whether the American people have loyalty enough, honor enough, patriotism enough to live up to their own Constitution."

"Now, as when Douglass made that statement," Griffen said, "there appears to be a huge gap between what some politicians claim to believe about freedom and their conduct."

Throughout the blog post, Griffenasserted that his critics are attacking his First Amendment right which gives citizens the right to free speech, freedom to express their religion, and the right to peacefully assemble. He claimed Arkansas legislators and other politicians are "outraged" because he decided to express his First Amendment rights at a Good Friday prayer vigil the same day he granted a temporary restraining order on the use of one execution drug.

"The First Amendment guarantees my freedom to be a follower of Jesus, whether politicians like how I follow Jesus or not," Griffen said. "The First Amendment guarantees my freedom to assemble peaceably with other persons, whether politicians approve of what I think."

Griffen said his critics took an oath to uphold and support the United States Constitution and that their actions should emulate the oath they took.

"We have no right to use our offices to punish or threaten people for exercising their right to disagree with us," Griffen said.

The Judicial Discipline and Disability Commission are currently investigating Griffen's conduct from April 14 to see if violated the Code of Judicial Conduct.

Griffen then filed his own ethic complaint against Attorney General Leslie Rutledge and Arkansas Supreme Court. He said neither the court nor Rutledge gave him an opportunity to respond to the effort to disqualify him. The commission will look into that complaint at the same time as they look into Griffen's conduct.

House Speaker Jeremy Gilliam during the passing of the resolution said there aren't any plans to impeach Griffen. During the debate, several legislators disagreed strongly with the change. State Representative Vivian Flowers (D-Pine Bluff) said the commission investigating Griffen already has the authority to discipline him.

To read Griffen's full blog post, click here.

2017 KTHV-TV

KTHV

Sen. Garner calls for impeachment of Judge Griffen, House votes to amend rules

KTHV

Judge Griffen files ethic complaint against AG Leslie Rutledge, Ark. Supreme Court

KTHV

State of Arkansas asks court to remove Judge Griffen from restraining order case

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Judge Griffen says critics, politicians are attacking his First Amendment rights - THV 11

Courtesy: Emily Chastain

In conjunction with the White House Correspondents Dinner Friday was the inaugural Toast to the First Amendment! Here, Distilled Spirits Council president and CEO Kraig Naaszwith RealClearPolitics DC bureau chief Carl Cannon, Beer Institute CEOJim McGreevyand Steve Danon, senior vice president of communications for the National Restaurant Association. The event was hosted by their respective organizations in honoring the First Amendment while enjoying somelibations.

Courtesy: Emily Chastain

The Distilled Spirits Council of the United States featured a rare liquor tasting on the patio, where guests were able to sample some of the rarest and most expensive liquors available. Here, the HouseOversight and Government Reform Committee'sRyan Hambleton joins Politico White House correspondent Shane Goldmacher.

Courtesy: Emily Chastain

In addition to the variety of beverages guests had tasty treats, including branzino mini tacos, global sliders, homemade Grand Marnier marshmallows and handmade cocktails from mixologist Zebulon Jones.

Courtesy: Emily Chastain

Acclaimed journalist and iconCarl Bernstein with theNational Restaurant Association'sSteve Danon.

Courtesy: Emily Chastain

Here, former Speaker John Boehner's press secretary, Michael Steel, tries some of the rare beer provided by the Beer Institute, including Samuel Adams Utopias.

CORRECTION, MAY 4, 2 P.M. ET: Beer Institute CEO Jim McGreevy is not the former governor of New Jersey, as a previous version of this story said. Michael Steel is the former press secretary of John Boehner, not Speaker of the House Paul Ryan. This story has been updated.

See the original post:
Toast To The First Amendment! - Bisnow

Lincoln Caplan, Joel Simon, Nicholas Lemann, Michael Oreskes, and Emily Bell. Photo: Meritxell Roca.

The internet in its halcyon days was lauded as a open space that could promote free speech in the US and worldwide, but it is now a realm that has settled into domination by a few companies. As we enter an age in which the internet is fully integrated into our daily lives, the main channel by which we access information, a reconsideration of the values of the First Amendment is required.

This was the motivation for a symposium on May 1 at Columbia University called Disrupted: Speech and Democracy in the Digital Age. Attended by a mix of legal professionals, academics, and journalists, the message was clear: Legal thinking around the First Amendment must renew itself in the new era. The internet is deeply affecting the shape of public discourse. In turn, how can the values of freedom of expression, freedom of the press, and freedom of assembly shape and govern the digital space?

This was the first public event hosted by the Knight First Amendment Institute at Columbia University (the Tow Center for Digital Journalism was co-sponsor). The Institutewill surely be at the center of this debate for years to come. The First Amendment Institute, now up and running after its inception last year under founding director Jameel Jaffer, will be dedicated to research, education, and litigation pursuing freedom of speech.

Law, by nature, is always catching up to technology. Leslie Kendrick, professor of law at University of Virginia, made the distinction between east coast code and west coast codeeast coast code being the codified legal precepts, and west coast code being, well, all those lines written in computer language. East coast code, she said, is always behind west coast code; west coast code moves fast and is always inventing things the law cannot anticipate.

Legal efforts on behalf of the First Amendment have traditionally focused on the right to say thingsthe right to hand out pamphlets, as Tim Wu, professor of law at Columbia and contributing opinion writer for The New York Times, put it. But almost everyone on stage yesterday agreed that, with the internet, the right to say things is no longer under threat. Instead, there are a host of other threats enabled by the advent of the internet.

Now that anyone can publish freely online, one threat to free speech comes from the ability of companies or social media platforms to control who gets heard; how many readers newspapers reach; and which citizens have a voice in a cluttered online environment of bots and ads. Zeynep Tufekci, writer for the Times and professor of communications at University of North Carolina, wondered whether Twitter users leaving the platform because of harassment might be having their freedom of assembly violated. She also warned of new censorship techniques, in use now in China, which drown out anti-government speech rather than the traditional method of silencing. Teams of social media users linked to government agents pump out celebrity controversies, Tufekci said, at the same time other users are trying to raise the profile of the Tiananmen Square massacre.

Such censorship techniques take advantage of the fact that all of us have limited attention. And, as Wu has written extensively on, the entire internet is built so that our attention is the currency. Facebook, in particular, makes money off of being able to keep you on their platform, clicking. And theyve become immensely good at targeting content to you. The data they have on individuals is unprecedented: no longer demographic, but individual and granular. New litigation around the First Amendment must pay attention to this market.

Another threat to freedom of the press is the breakdown of economic models. As Nicholas Lemann, formerly dean of the Journalism School at Columbia, put it, the big story in journalism now is not Trump, but the massive loss of jobs suffered in the past few years. Michael Oreskes, senior vice president and editorial director of NPR (and a CJR board member), emphasized that the greatest loss has been in local papers: Many city halls around the country are no longer covered. While the internet has been very good in making information available globally, local news has suffered because it does not have this universal appeal.

Addressing such questionsthe economic downfall of journalism, the new attention market, a new type of censorshipwill require a more imaginative view of the (quite brief) First Amendment, said Jamal Greene, professor of law at Columbia. Consider, he mused, if we passed a law limiting the number of people you could follow on Twitter to 50. In one sense, such a law would in conflict with the First Amendmentbut in other ways, such a move might promote discussion and deliberation. How we will negotiate such cases will be the work of the coming generation.

The bottom line is that Twitter and Facebook are private companies that have become our primary sites for public discourse. The function of journalismand indeed, the function of democracydepends on upholding the First Amendment to preserve the public sphere.

Watch the full event stream here.

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Legal thinking around First Amendment must evolve in digital age - Columbia Journalism Review

The tattoo trade has won another notable legal victory in its long-running battle against unreasonable government regulation.

In late March a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled unanimously in favor of California tattoo artist James Real, who is currently mounting a constitutional challenge to the city of Long Beach's anti-tattoo shop zoning law and other prohibitory regulations. "We have held that tattooing is 'purely expressive activity fully protected by the First Amendment,'" the 9th Circuit bluntly reminded the federal district court, which had previously dismissed Real's complaint. "This includes '[t]he tattoo itself, the process of tattooing, and even the business of tattooing.'" Translation: Get your act together, district court.

This is a key win for Real, who had suffered a massive early defeat when the federal district court held that he lacked standing to challenge the city's zoning law as unconstitutional on its face and that he lacked standing to challenge the law as applied to him. The district court also held that the city's actions cannot be viewed as violations of Real's First Amendment rights.

The 9th Circuit reversed the district court on all counts. Its decision in Real v. City of Long Beach orders the district court to rehear Real's case and "to try Real's facial and as-applied First Amendment claims, on the grounds that the City's zoning ordinances operate as unlawful prior restraints on speech and are unreasonable time, place, or manner restrictions on speech." I suspect Real is going to fare a little better in district court the second time around.

As I previously reported in Reason's June 2016 issue, tattoo artists are increasingly taking the government to court and winning on the merits:

Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide.

James Real's preliminary victory at the 9th Circuit is further evidence that the tide is turning.

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Federal Court to Government Regulators: The First Amendment Protects Tattoo Shops - Reason (blog)

Andrew Lichtenstein/Polaris/NewscomPresident Donald Trump's willingness to alter the terms of the First Amendment as part of his desire to censor critical press of him is firmly established: See his constant complaints of "fake news" (to be fair, his complaints are sometimes correct) and his desire to "open up libel laws." The president has no direct influence over the content of libel laws because they're state-level laws. There are many pivotal Supreme Court rulings on the relationship between libel laws and the First Amendment protections of free speech and a free press. Trump would have to rewrite the First Amendment in order to get what he wants.

Trump is not going to be altering the First Amendment. Let's just start with that. Even if he weren't an extremely divisive president, it would be quite the uphill battle. But it is worth taking note at how establishment officials looking to maintain influence within the Trump administration respond. It's worth separating out what is possible from what is likely.

The coverage of Sunday interview between ABC's Jonathan Karl and White House Chief of Staff Reince Priebus on This Week seems designed for the purpose of keeping this fight between Trump and the press on front burner, as if the president's absence from the White House Correspondents Dinner and counter-rally didn't already have that effect.

Priebus knows that Trump isn't changing anything about the First Amendment and that there will be no changes to libel laws in the near future. But he is not willing to say that. He can't. He won't. So during his Sunday interview with Karl he says "It's something we've looked at. How that gets executed or whether that goes anywhere is a different story."

We don't know what "looked at" means (perhaps a Google search of pages that explain state libel laws?), but some media analysts are concerned about the implications that this might actually happen. It probably won't, but the media benefits from playing up this conflict as much as Trump does.

Let's take a look at where that conversation shifted after talking about libel laws, because that's where I'd rather we were paying attention. Trump has also said he would like to criminalize flag-burning, which Priebus also vaguely defended in a similar fashion. There is a lot of popular support for laws against burning flags, though when truly pressed, a majority of Americans tend to come down against a constitutional amendment. The wording of the poll question matters.

Trump is not alone in his desire to change the First Amendment in ways that benefit his particular world view, and if nothing else, his efforts should be use as an object lesson. Priebus complains that the press has been irresponsible in its reporting. This is not a new complaint from government officials targeting the press. In the wake of the Edward Snowden revelations, the New York Times itself (a noted Trump target) hosted commentary by Michael Kinsley suggesting there needed to be some sort of oversight over what the press was allowed to publish.

Americans have a remarkable facility for looking for exceptions to the First Amendment and deciding that some controversial or unpleasant statements simply are not valid forms of speech. On the other side of the aisle, there's a concerted push to invalidate the Supreme Court's Citizens United decision by attempting to amend the Constitution to deprive corporations of legal personhood and of their right to free speech.

And we more prominently have the current push to insist that "hate speech" does not qualify as "free speech" and the belief by many poorly educated Americans (some of whom are actual politicians who should know better). These comments by Priebus should be reminders that if and when there are restrictions placed on the free speech of American citizens, it's the leaders of government who will be calling the shots. We have a president who is thin-skinned and self-interested. We also have any number of political operatives who are willing to play along with him in order to maintain power.

That is all to say, in the event the First Amendment does face the threat of actual new restrictions it will bear the stamp of "public interest." It will be a lie, but not as obvious a lie as what Trump is trying to sell. Guys like Priebus (on both sides of the aisle) will happily sell the Bill of Rights down the river if it will help facilitate the type of government control over society that they want. The Trump administration may deregulate businesses on the one hand, and that's great, but they really have no interest in making the government less powerful.

Back in December, Matt Welch provided a useful five-step process in countering Trump's bad ideas. It's definitely worth reading here.

Go here to see the original:
No, Trump Won't Change the First Amendment, But It Matters That People Want To - Reason (blog)

High school student support for the First Amendment is at its highest in 10 years, according to a Knight Foundation survey. (Chuck Dearden)

High school student support for the First Amendment is at its highest point in 10 years, according to a recently published Knight Foundationsurvey.

The Knight Foundations Future of the First Amendment Survey began in 2004 and sampled more than 300 high schools. Subsequent surveys were conducted in 2006, 2007, 2011, 2014 and 2016 from random samples of the same participating schools.

Ninety-one percent of high school students now agree people should be allowed to express unpopular opinions, compared to 83 percent in 2004, according to the survey results.

Im really glad that more people are understanding the importance of the First Amendment, said Robert Walz, a BYU journalism professor and former ABC4 News reporter. Thats kind of what I built my whole career on.

Walz said he sees the millennial generation exercising their First Amendment rights daily, as opposed to remembering his generation only thinking about those rights once a month or once a year.

The report reveals how student perspectives are changing in a new media environment and opens opportunities for educators, journalists and defenders of the First Amendment to anticipate and address the challenges that may affect our most fundamental rights, said Jennifer Preston, Vice President of journalism at the Knight Foundation, in a news release.

Mountain View High School government teacher Robert Stoddard said he teaches the First Amendment by focusing on the individual rights it protects and by using Supreme Court cases.

Stoddard said he thinks the rise of social media brought upmany questions regarding what can and cant be said or written.

I also think that because of this last election, young people more than ever are developing stronger opinions about government and its role, Stoddard said. People question more than ever what, exactly, should the government be doing.I think this is a great thing.

The survey found students have five times more trust than teachersin the media and stories individuals post on social media. Twenty-sixpercent of todays high school students say news posted by individuals is more trustworthy than stories from professional journalists, and 29 percent say they are equally trustworthy.

Millennials trust Twitter more than they do the newspaper, Walz said.

Walz said hes seen millennials grow up in a time when there is huge distrust of organizations such as business, government and religion.

I think the individual has become more trustworthy than the organizations and institutions, Walz said. So because of that, I see the millennial generation using the First Amendment more than they ever did before. Theyre speaking out on things because now they can.

Stoddard said he thinks high school students trust social media more because studentsmake up a large percentage of social media users.

Teachers are still somewhat trusting that journalists have some amount of training and journalistic integrity that will hold them accountable to finding and printing as unbiased of an account as possible, Stoddard said.

The survey found students who frequently consume news are more supportive of the First Amendment than students who do not consume news often.

Emery High School senior Ashton Dieli said he watches quite a bit of news in his government classes and on social media.

I think it is important that we continue to use our freedom of speech and assembly and all that, but with that, people need to also use their freedom of thought, Dieli said.

Dieli said he believes traditional news is biased most of the time, but still thinks its a better source than social media.

The survey showed 56 percent of students in 2016 disagree with the statement, The First Amendment goes too far in the rights it protects, compared to 37 percent in 2006.

Journalists in other countries do not have nearly as many rights as American journalists protected under the First Amendment, Walz said.

They sacrifice their lives to get that information, Walz said. Were lucky in the United States that as long as we dont libel somebody and its the truth, we can say whatever we want. Its pretty cool when you think about it.

McKenna Park is an aspiring journalist studying at Brigham Young University.

Continued here:
High school student First Amendment support at all-time high - Universe.byu.edu

This article first appeared on the Just Security site.

Theres been substantial discussion in the news over the past week about the specter of a criminal prosecution of Julian Assange arising from his role in facilitating various disclosures of classified national security information, and its potential implications for press freedom in the United States.

Much like the Q&A we did back in February about Michael Flynn and the Logan Act, we thought it would be helpful to flesh out why the Assange case could pose such a troubling precedent for the press, and what the major unanswered questions are.

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Ryan to Steve : Let me start with a softball question before getting to four tougher ones. Why should journalists, as well as others concerned about freedom of the press, care about whether the government decides to prosecute Julian Assange?

WikiLeaks founder Julian Assange looks out of the window of the Ecuadorian embassy in central London on February 5, 2016. Ryan Goodman and Steve Vladeck write that a successful Assange prosecution in the U.S. could pose a troubling precedent for the press. NIKLAS HALLE'N/AFP/Getty

Steve to Ryan : Theres a lot to say here. The problem arises from two related but distinct phenomena.

First, the statute getting the most press here is the Espionage Act ( the relevant provision of which is

793 (e)

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;

which could theoretically apply to any third party who willfully transmits information relating to the national defense, or even retains it without authorization.

Second, although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause.

So if theres a First Amendment defense to the unlawful disclosure of classified national security information, the test (if not its application) should be the same regardless of whether the disclosure is by someone we all agree is a reporter, someone whos actually a foreign agent, or none of the above.

The breadth and concomitant lack of nuance of 793(e), about which Ive written previously, may help to explain why the government has almost never tried to prosecute a third party under that provisionand has instead focused on prosecuting those directly responsible for the unauthorized disclosure of national security information ( e.g. , spies and leakers).

The only attempted prosecution of third parties under 793(e), the 2005 indictment of two AIPAC lobbyists for their role in facilitating the transmission of classified information to Israel, fell apartbut without setting a clear precedent about how the First Amendment would protect unauthorized disclosure of national security information (if at all).

Finally, and turning to the First Amendment question, the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information.

Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.

To be sure, the Court has held that, in some circumstances, the First Amendment protects public disclosure of confidential information (and has applied whats known as Pickering balancing to assess when the public interest in disclosure outweighs the governments interest in preserving confidentiality), but even the Bartnicki decision in which the Court ruled that the First Amendment protects a radio stations broadcasting of an unlawfully recorded audio conversationturned to a large degree on the parties stipulation that the radio station itself had acquired the recording lawfully.

Because of the Espionage Act, theres no way for a third party lawfully to acquire classified national security information that they are unauthorized to possess.

So Im skeptical that Assange (or the New York Times , for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).

Thats not to say that there arent incredibly serious First Amendment concerns lurking in the background here; among other things, I have to think that the First Amendment might at least protect a right to publish information on unlawful government programs (which, by law, could not properly be kept secret in the first place), especially where the existence of the program is a matter of significant public concern.

Im just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowdens disclosures, at least of the phone records program, would fit the bill).

Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law.

And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if hes prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

Ryan to Steve : What if the governments case against Julian Assange is based primarily and lets say for the sake of analysis, exclusively on allegations that he was directly involved in procuring classified information?

For example, imagine if Assange specifically encouraged Chelsea Manning or others to disclose the information. In a Washington Post Op-ed, Jonathan Adler wrote likely many journalists who cover national security have encouraged their sources to obtain and leak secrets, too. Would they also be at risk?

But whats wrong with drawing that line, and telling journalists they can publish classified information that someone hands to them, but they must never be directly involved in encouraging someone with access to classified information to break the law in procuring it?

Steve to Ryan : This is a really important distinction, but the devil is in the details. If the governments claim against Assange is not about publication or retention of national security information, but instead looks more like a solicitation or conspiracy claim (or some other way in which Assange was directly involved in facilitating the original wrongful disclosureand can be charged under an accessory theory for the underlying leak), then that might provide a thin-enough reed on which to rest a prosecution without crossing the line discussed above.

But nuance really matters here; Hollywood depictions to the contrary notwithstanding, most leaks dont involve uncoordinated dead-drops of materials into a journalists mailbox, but are rather the result of careful relationship building and cultivation of sources.

That is to say, its not as obvious as it might seem at first blush that providing technical assistance to Manning is categorically different (in kind, if not degree) from the kind of newsgathering that produces front-page stories derived from national security leaks, for example.

Some readers might react to this as proof that both examples ought to be prosecuted; I dont mean to take a position on that here. My point is just that, unless Assange was even more involved in the underlying theft of materials than weve been led to believe, there are still serious line-drawing problems.

Ryan to Steve : What if the governments case against Julian Assange were based exclusively on materials he disclosed that can be shown to have no public interest whatsoever or any evidence of legal wrongdoing on the part of the government?

Imagine if Assange disclosed US troop locations in Afghanistan. In your view would Assanges action in that case be free speech protected under the First Amendment?

Do you think any of Wikileaks disclosures come close to that line?

Steve to Ryan : Per the above, Im not especially optimistic that, should it come to this point, courts would recognize a First Amendment defense in Assanges case.

But thats why this is potentially such a dangerous precedent: If Assange becomes the first successful prosecution of a third party under the Espionage Act, then that gives the government a whole lot of leverage it might previously have not thought it possessed to be much more aggressive in investigating the medias role in national security leaks.

Yes, its possible to imagine a case in which courts would recognize a First Amendment defense, but by that point the constitutional Rubicon would already have been crossed.

That is to say, the issue is not whether Assange violated the Espionage Act (my own view is that he did), or whether he should have a First Amendment defense. The issue is the precedent it sets for future investigationsand, as such, chillingof even the most responsible and important national security journalism.

Ryan to Steve : If the government in pursuing a case against Assange stipulated that it was only doing so because it could prove that Assange was motivated to harm the United States would that satisfy you?

Should that satisfy First Amendment critics of a Justice Department decision to prosecute Assange?

Steve to Ryan : Motive has never been a critical factor in Espionage Act cases, and for good reason. If the harm from unauthorized disclosure of national security information is the fact that the information is out there, whether the perpetrator has good or bad motives shouldnt affect whether the disclosure is or is not lawful.

Thats why Pickering balancing, insofar as it would apply here, looks instead to the extent to which the speech involves a matter of public concern. So even if the reason for the prosecution was because Assange, unlike, say, Times and Post reporters, was motivated to harm the United States, the law wouldnt careand the precedent would still be set.

Thats why, if youre asking what would satisfy me, the answer would be a theory of criminal liability that wouldnt draw a straight line to what we would all agree is professional journalism.

Ryan to Steve : Where do you draw the legal limit? There is widespread agreement that the Espionage Act is currently drafted in excessively broad terms. But if you were legal counsel to a congressional committee interested in redrafting the Espionage Act, what elements would you suggest could be left in place with low risk of raising a First Amendment problem?

Steve to Ryan : As it turns out, Ive testified (five different times) on this exact subject, including at two different hearings that were specific responses to Wikileaks.

The real problem from a First Amendment perspective is that the statute is old and ambiguousand not drafted with the kind of specificity that usually characterizes speech-restricting statutes that survive constitutional challenge.

Heres how I concluded my testimony at a March 2010 House Judiciary hearing on the Espionage Act and Wikileaks:

First, introduce a clear and precise specific intent requirement that constrains the scope of the Espionage Act to cases where the defendant specifically intends the disclosure to harm national security and/or to benefit a foreign power. . . .

Second, create a separate, lesser offense for unauthorized disclosures and retention of classified information and specifically provide either that such a prohibition does or does not cover the public redistribution of such information, including by the press.

If this Committee and body does decide to include press publication, my own view is that the First Amendment requires the availability of any number of affirmative defenses [including] that the disclosure was in good faith; that the information was improperly classified; that the information was already in the public domain; and/or that the public good resulting from the disclosure outweighs the potential harm to national security.

Third, and finally, include in both the Espionage Act and any new unauthorized disclosure statute an express exemption for any disclosure that is covered by an applicable Federal whistleblower statute.

Ryan Goodman is co-editor-in-chief of Just Security and the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16).

Steve Vladeck is co-editor-in-chief of Just Security and a professor of law at the University of Texas School of Law.

See the rest here:
Could Assange Claim a First Amendment Defense? - Newsweek - Newsweek