First Amendment – Media Nation

We are in a very dark place as the Trump administration targets the First Amendment

My ethics and diversity class on Wednesday was devoted to a brief overview of First Amendment law. The class comprises nine graduate students and advanced undergrads, and they have shown throughout the semester that they are engaged and compassionate young people.

I began with a video in the news. You’ve probably seen it. It shows black-clad, masked thugs, apparently with ICE, approaching a young woman on a sidewalk at Tufts University, hauling her off to a van and driving her away. Her name is Rumeysa Ozturk, and she’s a Ph.D. student and a Turkish citizen who’s in the U.S. on a student visa.

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It’s the latest shocking image in a series of shocking images we’ve been subjected to recently as the Trump administration — my friend Adam Gaffin of Universal Hub has simply taken to calling it “the regime” — tracks down international students who have been involved in some form of pro-Palestinian activism and targets them for deportation.

The only activity I have seen attributed to Ozturk that might have led to her being targeted is an op-ed she helped write calling on the university to recognize Israel’s actions in Gaza as “genocide” and to divest from Israel. You may agree or disagree; I mostly disagree, though I am appalled by the brutal manner in which Israel’s Netanyahu government has pursued its war against the terrorists of Oct. 7, 2023. But the First Amendment gives Ozturk an absolute right to speak and write freely, regardless of whether she’s a citizen.

According to accounts in The Tufts Daily student newspaper and Cambridge Day, thousands of protesters gathered in Somerville Wednesday night to show their support for Ozturk.

Cambridge Day reporter Jodi Hilton quoted Asli Memisoglu, a native of Turkey who graduated from Tufts in 1987, as saying: “One thing I’ve always cherished was the sanctity of free speech, but that’s threatened now.”

In The Tufts Daily, Emily Isaac, a Somerville resident, said: “People are always going to fight back. Everyone likes to say what they would have done during a historical atrocity, or during times of fascism, and I think it’s important to recognize the signs of when it’s happening.”

I wish I could say that Isaac was overstating matters.

Since Trump began his second term on Jan. 21, authoritarianism has descended upon us swiftly and mercilessly. Universities, law firms and public media organizations have all been targeted, and the people who are running them don’t know whether they should fight, surrender or find some sort of middle ground. Immigrants are whisked off to hellish prisons in El Salvador on the flimsiest of pretexes. Our country is quickly becoming unrecognizable.

On Threads last night, I saw a comment from someone who is definitely not a Trumper that, well, this is what people voted for. My response: Democracy without protection for individual rights is just another word for dictatorship.

We are in very bad shape, and the courts can only do so much.

Exhale: The Supreme Court turns down a chance to narrow or kill Times v. Sullivan

Wynn’s Encore casino in Everett, Mass. Photo (cc) 2024 by Dan Kennedy.

The Supreme Court on Monday turned down a chance to narrow or even throw out Times v. Sullivan, the 1964 ruling that provides the press with strong protections against libel suits. The court’s action was not entirely surprising, but it was heartening nevertheless.

The would-be challenge came about after former casino mogul Steve Wynn sued The Associated Press, claiming that its reporting on sexual misconduct he had allegedly engaged in during the 1970s was false and defamatory. Because Wynn is a public figure, he would have had to show the AP acted with “actual malice” — that is, that it knew its reporting was false or that it showed “reckless disregard” as to whether it was true or false. Wynn’s lawyers had sought to weaken the actual-malice standard.

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By declining to take up Wynn’s appeal, the Supreme Court indicated that no more than three of the nine justices are ready to revisit Times v. Sullivan, since it takes four justices to agree to hear a case. Clarence Thomas has previously written that he would overturn Sullivan in its entirety, while Neil Gorsuch would like to pare it back. Just recently, Brett Kavanaugh, though, went out of his way to affirm his support for Sullivan.

Since the court did not release a vote tally, we have no way of knowing whether or not Thomas and Gorsuch were joined by a third justice, or even if Thomas and Gorsuch themselves were willing to take the case. Perhaps they thought it was a poor vehicle for advancing their anti-Sullivan agenda. It would be nice to know, but that’s not how the court works.

Times v. Sullivan imposed the actual-malice burden only on public officials. Later rulings extended that to public figures. New York Times reporter David Enrich, in his new book, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” warned that the court might be willing to weaken Sullivan. Enrich wrote that “it is not hard to envision the Supreme Court substantially narrowing the scope of who classifies as a public figure or even ruling that the actual malice standard should only apply to government officials.”

Well, not yet, and not now. What will happen if and when a different case comes along is anyone’s guess.

The allegations of sexual misconduct against Wynn were originally reported in 2018 by The Wall Street Journal, which has published an archive of articles. According to the AP, Wynn reached an agreement with Nevada gambling officials in 2023 to exit the casino business and pay a $10 million fine without admitting any wrongdoing.

The Nevada Supreme Court described the AP story that drew Wynn’s ire as “a good-faith effort to inform their readers regarding an issue of clear public interest.”

A libel verdict against Greenpeace may destroy the organization — and weaken the First Amendment

Standing Rock protest in St. Paul, Minn. Photo (cc) 2016 by Fibonacci Blue.

Earlier this week, a North Dakota jury delivered a verdict on behalf of a large energy company that may destroy the environmental organization Greenpeace — and that could inflict significant damage on the First Amendment as well.

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According to reporters Jeff Brady and Alejandra Borunda of NPR, the jury ruled in favor of Energy Transfer, which built the Dakota Access oil pipeline, and which accused Greenpeace in a civil suit of libel, trespassing and other offenses. The jury awarded Energy Transfer $660 million, which Greenpeace officials have said could force the organization to cease operations.

Continue reading “A libel verdict against Greenpeace may destroy the organization — and weaken the First Amendment”

The Khalil arrest shows why we must protect ‘freedom for the thought that we hate’

The 1915 International Congress of Women in The Hague. Rosika Schwimmer is fourth from left. Photo via Wikipedia.

What is the First Amendment for? Quite simply, it is for protecting our right to express views that are unpopular or even offensive. There’s more to it than that, of course, and it’s not unlimited. But it surely is there to act as a shield for Mahmoud Khalil, a Palestinian activist who Donald Trump’s jackbooted thugs have arrested and who the administration is now trying to deport to — well, somewhere.

Khalil was involved pro-Palestinian activism at Columbia University last spring. As Philip Marcelo of The Associated Press reports, “The White House … claimed Khalil organized protests where pro-Hamas propaganda was distributed.” But Khalil also holds a green card, making him a permanent resident of the United States. Moreover, the First Amendment extends to anyone in the U.S., citizen or non-citizen, legal resident or undocumented immigrant.

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Nearly a century ago, Oliver Wendell Holmes Jr. had a few things to say about another non-U.S. citizen with unpopular views. Rosika Schwimmer was a Hungarian immigrant, feminist and pacifist who sought to become a U.S. citizen. She was turned down because she refused to take the oath of citizenship, believing that it obliged her to take up arms if ordered to do so — notwithstanding the reality that, as a woman, she would have been exempt from military service.

Her case ended up before the Supreme Court, which, in 1929, on a 6-3 vote, overturned an appeals court ruling in her favor. Justice Holmes wrote an eloquent dissent that is still invoked as a defense of the First Amendment’s true meaning. He said in part:

Some of her answers might excite popular prejudice, but, if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within, this country.

“Freedom for the thought that we hate” is a concise and compelling explanation of why the First Amendment matters, and it’s a phrase that we’ve all heard over and over again. Anthony Lewis even made it the title of one of his books.

And it’s why Trump is acting illegally and unconstitutionally in holding Mahmoud Khalil for deportation. Khalil has not been charged with a crime. He has not been accused of providing material assistance to Hamas. Rather, he is being singled out for his political views. And let’s be honest — Trump is doing this in a deliberate attempt to rekindle left-wing activism on behalf of the Palestinians in order to harm Democrats, universities and anyone else who stands in the way of his authoritarian project.

New York Times columnist Michelle Goldberg has called Khalil’s arrest the most significant threat to free speech since the Red Scare of the 1940s and ’50s. “If someone legally in the United States can be grabbed from his home for engaging in constitutionally protected political activity, we are in a drastically different country from the one we inhabited before Trump’s inauguration,” she wrote. And indeed, Trump has boasted that more arrests will follow.

Schwimmer, at least, was allowed to remain in the U.S. as a non-citizen. She eventually moved to New York City and died in 1948. Khalil’s fate has yet to be determined.

Powerful forces want to dismantle libel protections. These three books explain why it matters.

The U.S. Supreme Court. Photo (cc) 2020 by APK.

When the Supreme Court ruled in 1964 that news organizations need no longer fear ruinous libel judgments over small, inadvertent errors, it sparked an explosion of investigative reporting. A direct line connects the court’s decision in New York Times v. Sullivan — inevitably described as a “landmark” — and journalism that exposes government secrecy and corruption at the national, state and local levels.

Under Times v. Sullivan, a public official who sues for libel must show that a defamatory statement was made with “actual malice,” a term of art that means the statement was published “with knowledge of its falsity or with reckless disregard of whether it was true or false.” Later rulings extended actual malice to public figures.

But though Times v. Sullivan freed the press to uncover government lying in the Vietnam War and the Watergate scandal, the backlash began almost immediately. That backlash is the subject of a new book by New York Times reporter David Enrich called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.”

“Murder the Truth” also prompts a look back at two earlier books that examine the historical and legal significance of the Sullivan decision — “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (2023), by Samantha Barbas, and “Make No Law: The Sullivan Case and the First Amendment” (1991), by Anthony Lewis. It is Enrich’s book, though, that speaks to the urgency of this calamitous moment, as well as the fate of the free press during President Donald Trump’s second term.

Read the rest at Poynter Online.

In Mississippi, a censorious order is lifted, but questions remain; plus, press solidarity, and good news from GBH

The Mississippi judge who ordered a newspaper to remove an editorial from its website has reversed herself. But this is hardly a victory for freedom of the press.

Judge Crystal Wise Martin rescinded her temporary restraining order after the owner of The Clarksdale Press Register and the board of commissioners in that city agreed to settle a dispute that had resulted in a libel suit being filed. The commissioners agreed to drop the suit while Wyatt Emmerich, president of Emmerich Newspapers, said the paper will publish a less incendiary version of the editorial, according to Michael Levenson of The New York Times (gift link).

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That does not change the reality that Judge Martin leaped in to help city officials by censoring the newspaper, even though the First Amendment protects libelous materials from being subjected to prior restraint. Libel can, of course, be punished after the fact through a civil suit, although government agencies cannot sue for libel.

The editorial, headlined “Secrecy, Deception Erode Public Trust,” took city officials to task “for not sending the newspaper notice about a meeting the City Council held regarding a proposed tax on alcohol, marijuana and tobacco.”

Continue reading “In Mississippi, a censorious order is lifted, but questions remain; plus, press solidarity, and good news from GBH”

The AP goes local; plus, the National Trust runs into trouble in Colorado, and a call for de-Foxification

The Associated Press has been in the news a lot lately, both because of its feud with the White House over Donald Trump’s insistence that it refer to the Gulf of Mexico as the “Gulf of America” and for some cuts it’s had to implement (see Gintautus Dumcius’ story in CommonWealth Beacon and Aidan Ryan’s in The Boston Globe).

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But here’s some good news: The AP announced on Thursday that it’s creating a Local Investigative Reporting Program to support efforts at the community level. According to an annoucement by executive editor Julie Pace, the initiative will be headed by veteran AP editor Ron Nixon, who “will work with state and local outlets to cultivate stories and support their investigative reporting needs.”

The program will encompass training, resources and access to AP services, and will build on the agency’s Local News Success Team “to localize national stories for member audiences and provide services and support to newsrooms across the U.S.”

Continue reading “The AP goes local; plus, the National Trust runs into trouble in Colorado, and a call for de-Foxification”

In Mississippi, a shocking case of censorship. Plus, the AP ponders a lawsuit, and good news in Texas

Judge Crystal Wise Martin is sworn in by her mother, retired Judge Patricia Wise, in 2019. Photo via the Mississippi Office of the Courts.

In 1971, after a federal court stopped The New York Times from publishing the Pentagon Papers, the government’s secret history of the Vietnam War, the Supreme Court was so alarmed at that naked act of censorship that it took up the case in a matter of weeks. On a 6-3 vote, the court ruled that the Times, The Washington Post, The Boston Globe and others could resume publishing, though they might face prosecution for revealing classified information. (They didn’t.)

In 1979, after a small magazine in Wisconsin called The Progressive said it intended to publish an article revealing some details about how to manufacture an atomic bomb, a federal judge stepped in and said no — but so agonized over his censorious act that he all but begged the magazine and the government to reach a compromise.

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Then there’s Judge Crystal Wise Martin of Mississippi. On Wednesday, Martin issued a temporary restraining order requiring The Clarksdale Press Register to take down an editorial from its website. According to Andrew DeMillo of The Associated Press, the editorial, headlined “Secrecy, Deception Erode Public Trust,” took city officials to task “for not sending the newspaper notice about a meeting the City Council held regarding a proposed tax on alcohol, marijuana and tobacco.”

The city had sued the Press Register, claiming that the editorial was libelous and that it “chilled and hindered” the council’s work. Mayor Chuck Espy was quoted in the AP story as saying the editorial had unfairly implied that officials had violated the law. He cited a section of the editorial that asked, “Have commissioners or the mayor gotten kick-back [see update below] from the community?”

Continue reading “In Mississippi, a shocking case of censorship. Plus, the AP ponders a lawsuit, and good news in Texas”

Another Mass. judge orders a magazine to turn over its reporting materials; plus, media notes

Illustration produced by AI using DALL-E

One step forward, one step back.

Less than two weeks after state Superior Court Judge Beverly Cannone reversed herself and ruled that Boston magazine reporter Gretchen Voss did not have to turn over notes she took during an off-the-record interview with murder suspect Karen Read, another judge is demanding that a journalist assist prosecutors in a different murder case.

On Monday, Superior Court Judge William Sullivan ordered that The New Yorker produce audio recordings of interviews with the husband of Lindsay Clancy, who’s been charged in the killing of her three children at their Duxbury home.

And there’s more, according to Boston Globe reporter Travis Andersen, who writes that the magazine will be required to produce “all audio recordings of Patrick Clancy, two of his relatives, and two friends who spoke to the magazine for a story that ran in October” as well as “relevant interview notes, text messages, voicemails, and emails in possession of the publisher or reporter Eren Orbey.” Orbey’s story on the Clancy case was published last October.

I would assume that The New Yorker and its corporate owner, Condé Nast, will appeal, although the Globe story doesn’t address that issue. Last Friday, Charlie McKenna of MassLive reported that Judge Sullivan had allowed the prosecution’s motion for The New Yorker’s reporting materials and that Clancy’s lawyer, Kevin Reddington, did not object. The magazine had not responded to the demand, a prosecutor told Sullivan.

There is no First Amendment right for reporters to protect their confidential sources or, as in this case, their reporting materials. Massachusetts does not have a shield law, and protections based on state court precedent are regarded as weak.

The problem is that forcing reporters to turn over their notes, recordings and other materials transforms them into an arm of the prosecution and interferes with their ability to do serve as an independent monitor of power. Sullivan made the wrong call, and I hope he — like Judge Cannone — has second thoughts.

Media notes

• That didn’t take long. After Google Maps changed “Gulf of Mexico” to “Gulf of America,” opponents of Donald Trump took to social media to announce that they were moving to other platforms. Well, on Tuesday evening Microsoft and Apple began to follow suit. Honestly, no one should have been surprised.

• The fracturing continues. BuzzFeed may become the latest company to unveil an alternative to Twitter/X, according to Max Tani of Semafor, as it seeks to offer “an alternative to the rightward, masculine drift of American public culture.” Well, good luck with that. After shutting down its news division, BuzzFeed is now cutting its HuffPost subsidiary. I have to say that Bluesky is working pretty well for me as my main short-form social-media outlet.

• Back to his roots. U.S. Sen. Dick Durbin, D-Ill., is demanding answers from Meta CEO Mark Zuckerberg about ads running on Instagram for a program that uses artificial intelligence to create fake nude photos of real people. The ads violate Meta’s terms of service, reports Emanuel Maiberg of 404 Media. But let’s not forget that Zuckerberg created a predecessor site to Facebook as a way to rate the hotness of Harvard women.

Despite Trump’s attacks on freedom of the press, the Sullivan decision’s libel protections appear to be safe

Justice Clarence Thomas. Public domain photo via Wikimedia Commons.

Donald Trump may find that there are limits to how far he can go in tearing down the First Amendment’s guarantee of a free press. Adam Liptak reports in The New York Times (gift link) that the U.S. Supreme Court doesn’t seem inclined to revisit the libel protections of New York Times v. Sullivan, writing:

[I]t was notable that just five days before President Trump took office last month, the Supreme Court seemed to go out of its way to signal that it is not ready to embrace one of his most dearly held goals: to “open up our libel laws” and overrule the Sullivan decision.

That signal came in the form of an approving aside in a routine decision by Justice Brett Kavanaugh for Sullivan’s requirement that public officials must offer “clear and convincing evidence” in order to win a libel case — a higher barrier than a “preponderance of the evidence,” that standard that applies in most civil cases.

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The heart of Times v. Sullivan, a unanimous decision handed down in 1964, is that public officials must prove “actual malice” in order to win a libel case. That is, they most show knowing falsehood or “reckless disregard” for the truth. Subsequent decisions extended the Sullivan standard to public figures and narrowed the definition of “reckless disregard.”

The decision was intended to shut down a wave of libel suits brought by racist Southern officials aimed at silencing coverage of the Civil Rights Movement. The Sullivan standard also enabled investigative reporting on matters such as the Watergate scandal, since publishers no longer had to worry that small, inadvertent errors would bring about financial ruin.

Press-freedom advocates have been holding their breath since Justice Clarence Thomas wrote that he would, if given the chance, overturn the Sullivan decision and Justice Neil Gorsuch said he favored severely curtailing it. As I wrote for GBH News in 2021:

What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell.

But maybe Sullivan is secure, at least for now. “All of this suggests that there remain only two votes to overturn the Sullivan decision,” Liptak writes, “well short of the four it takes to add a case to the court’s docket, much less the five required to prevail on the merits.”

Still, threats remain. Liptak observes that numerous challenges to Sullivan, citing Thomas and Gorsuch, have been filed in the past few years. Just last week, casino mogul Steve Wynn filed an appeal in his ongoing libel suit against The Associated Press and asked that Times v. Sullivan be overturned. Howard Stutz of The Nevada Independent quotes David Orentlicher, a law professor at the University of Nevada at Las Vegas, who says:

This would be a dangerous time to revisit the protection of the free press. Unfortunately, we have an administration that has decided to target the press and others who write critical commentary. There is a blurring of lines between government officials and private persons who have power. This is exactly the wrong time to weaken the protection of the press.

Moreover, none of this does anything to stop deep-pocketed libel defendants such as ABC and possibly CBS from giving in to bogus suits filed by Trump in order to advance their business interests. So far, at least, the Des Moines Register and its parent company, Gannett, are holding firm in the face of Trump’s most ridiculous lawsuit — that they somehow engaged in “consumer fraud” by publishing the results of a poll that turned out to be way off the mark. The pollster, J. Ann Selzer, is being sued as well. Trump has been joined by a right-wing organization called the Center for American Rights, as Robin Opsahl reports for the Iowa Capital Dispatch.

Perhaps a signal from the Supreme Court that the protections of Times v. Sullivan remain secure will serve to stiffen the backbone of news organizations and their parent companies. If they’re not willing to fight for press freedoms that they already have, then the Sullivan decision is worth very little.