Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.

Now that opportunity may have arrived.

Read the rest at GBH News.

The First Amendment and Mayor Wu: What press restrictions and vile demonstrations have in common

Photo of protesters by Saraya Wintersmith for GBH News

Over the past week, Boston Mayor Michelle Wu has been caught up in two seemingly unrelated controversies. What they have in common is that they touch on important First Amendment issues.

Read the rest at GBH News.

Protests outside elected officials’ homes will lead to actions none of us want

We don’t have official residences for elected leaders in Massachusetts, and that’s a good thing. I like it that Gov. Charlie Baker still lives in Swampscott, where he was once a selectman, and that Boston Mayor Michelle Wu lives in a two-family home in Roslindale with her husband, children and mother.

Sadly, the breakdown of civility in our society is making it untenable. Bullhorn-wielding anti-vaxxers have been protesting outside Wu’s house, and they’re becoming increasingly hateful. Have a look at what Wu tweeted this morning:

It’s happened to Baker, too. Last September, climate-change protesters were arrested after they chained themselves to a pink boat labeled “Climate Emergency” that they had brought with them.

Even if you believe there’s nothing wrong with verbally abusing elected officials outside their homes, it’s certainly not something their neighbors signed up for.

This is going to lead to actions that none of us want. Heavy security is just a start. The Legislature is considering a bill that would outlaw protests within 100 yards of an elected official’s home. That’s almost certainly unconstitutional, as it would ban legally protected speech on public streets and sidewalks.

Or we could see a move toward official residences that are not in residential areas. The city of Boston already owns the Parkman House, near the Statehouse. If I’m remembering correctly, Mayor Kevin White lived there for at least part of his time in office.

The best solution would be for protesters to decide that elected officials’ homes are off limits. I doubt that’s going to happen, though. And so, inevitably, politicians are going to decide they have to remove themselves from normal life even more than they already are. That’s not good for them, or for us.

Mayor Wu’s Mass and Cass coverage guidelines violate press freedoms

Boston Mayor Michelle Wu campaigns in 2021. Photo by Lex Weaver via Global Observer, a publication of Northeastern University’s School of Journalism.

The day before city workers were set to dismantle the tents occupied by homeless people at Massachusetts Avenue and Melnea Cass Boulevard, Boston Mayor Michelle Wu’s press office sent out some instructions to members of the media: keep 50 feet away; don’t take photos or videos of people’s faces; allow outreach workers to talk with people in private.

Later on, the 50-foot rule was amended to 10 feet.

The area around Mass and Cass, it should go without saying, is public property. The media are free to do what they like. They should act ethically, of course, but that’s on the reporters and photographers, not on the city. And Wu’s rules go beyond basic ethics and decency. Why shouldn’t the press be able to get close enough to interview people as long as they’re not interfering with city workers? Why shouldn’t they be able to take photos and shoot video of people who’ve given their consent?

Bad move by the mayor. We’ll see how it plays out.

Why the Jan. 6 panel should tread carefully in seeking Sean Hannity’s testimony

Photo (cc) 2015 by Gage Skidmore

The Jan. 6 select committee’s decision to ask Sean Hannity to testify carries with it a few nettlesome details.

The Fox News star’s lawyer, Jay Sekulow, has already invoked the First Amendment. But there is, in fact, no constitutional protection for journalists who are called to testify in court or, in this case, before a congressional committee. The problem, as the Supreme Court explained in its 1972 Branzburg v. Hayes decision, is that granting such a privilege requires defining who’s a journalist and who isn’t. And the First Amendment belongs to everyone.

That said, the government is generally loath to force journalists to testify because of the chilling effect it would have on the ability of news organizations to operate as independent monitors of power. It would be well within bounds for the committee to decide that Hannity is not a journalist. He was a close confidant of Donald Trump when Trump was president, was a featured speaker at a Trump rally and, in his communications with the White House, made it clear that he was a member of Team Trump.

But this brings us back to one of the central dilemmas of the Trump years. Hannity’s behavior was so over the top that it’s easy to say he’s not a journalist. Still, you can be sure that Trump’s defenders will point to far more ambiguous situations and say, “What about?” Ben Bradlee’s friendship with President John F. Kennedy comes to mind, as does Walter Lippmann, the ultimate insider.

The problem facing members of the select committee is that if they subpoena Hannity and other Fox News personalities, they would do so in the certain knowledge that Republicans will claim a precedent has been set and abuse it as soon as they’re in a position to do so. I have little doubt, for instance, that New York Times executive editor Dean Baquet and former Washington Post executive editor Marty Baron would be forced to testify about their papers’ coverage of the Russia scandal.

Which is why the select committee is hoping that Hannity will accept its invitation to testify voluntarily. If he refuses (as he almost certainly will), then it will have to decide whether to issue a subpoena — a move that could have far-reaching consequences.

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N.H.’s retiring secretary of state won a Muzzle Award and was an early Big Lie enabler

Photo (cc) 2016 by Charlene McBride

Bill Gardner, who announced Monday that he won’t seek re-election as New Hampshire’s secretary of state after nearly a half-century in office, won a New England Muzzle Award from GBH News in 2017 for his obsession with cracking down on “ballot selfies.” Here’s the item:

Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.

In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?

A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.

Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.

Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.

The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”

Gardner, nominally a Democrat, also came under fire for refusing to step down from President Donald Trump’s bogus voting commission after the chair of that commission wrote a piece for the right-wing website Breitbart falsely claiming that Trump had actually won New Hampshire in 2016.

Don’t let the door hit you on the way out, Mr. Secretary.

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A New York state judge’s ruling against the Times imperils First Amendment rights

2009 photo by Dan Kennedy

Previously published at GBH News.

What is New York Supreme Court Judge Charles D. Wood thinking?

On Christmas Eve, Wood issued an order forbidding The New York Times from publishing confidential documents it had obtained detailing legal advice given to Project Veritas, a right-wing organization that specializes in hidden cameras and infiltration. Moreover, Wood ruled that the Times would have to return the documents to Project Veritas and destroy any electronic copies that it held.

“In defiance of law settled in the Pentagon Papers case,” said Times publisher A.G. Sulzberger in a statement, “this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”

The decision follows a temporary ruling Wood issued more than a month ago to stop the Times from making further use of the documents. The Times appealed that ruling, but an appellate court declined to act. (On late Tuesday, a state appeals court ruled that the Times does not have to turn over or destroy the documents in its possession, at least for now.)

Here’s some background. Last spring, Project Veritas, headed by the notorious James O’Keefe, sued the Times for libel, claiming that the Times’ reference to two Veritas videos about voter fraud as “deceptive” was false and defamatory.

Then, in an unrelated matter, the Times in November published a story following up news that federal officials were investigating Veritas’ possible involvement in stealing a diary kept by Ashley Biden, President Joe Biden’s daughter. In that story, the Times quoted from confidential documents that Veritas had received from its lawyers on how to carry out its dubious stunts while avoiding legal trouble. Those documents predated Veritas’ lawsuit against the Times by several years. The Times contends they were obtained through its reporting, not through pretrial discovery in the libel case.

And by the way, don’t be fooled by Wood’s lofty title — there are 62 supreme courts in New York State. He is, in fact, a trial-court judge, elected to that position in 2009 after serving as an aide to former state senator Nicholas Spano, a Republican who pleaded guilty to federal tax-evasion charges in 2012.

But you don’t have to have a sterling judicial pedigree to know that if the First Amendment stands for anything, it stands for the proposition that the government may not ban anyone from publishing or broadcasting. Yes, there are certain narrowly drawn exceptions; serious breaches of national security, incitement to violence and obscenity may all be censored.

Still, the rule against prior restraint is robust enough to have led the Supreme Court to allow the Times and The Washington Post to publish the Pentagon Papers, the government’s own secret history of the Vietnam War. It also led a federal judge in 1979 to agonize over a decision to prohibit The Progressive, a small left-wing publication, from publishing an article on how to build an atomic bomb.

“A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” U.S. District Court Judge Robert Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” (Warren imposed a temporary restraining order and told The Progressive and the government to work out a compromise. That order was rendered moot when a different publication ran a similar article.)

No such agonizing over the prospect of muzzling the press is evident in Wood’s opinion. Take, for instance, his ruling that the information contained in the confidential documents the Times reported on are not a matter of “public concern.” A finding to the contrary might have opened the door to the Times’ publishing the documents despite Wood’s erroneous assertion that the attorney-client privilege is at stake.

“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half.”

This is Wood setting himself up as editor, deciding what’s newsworthy and what isn’t. The documents concerned advice from Project Veritas’ lawyers on how to avoid legal trouble when carrying out its undercover operations. Surely that’s of public concern, especially since the courts have set the threshold for newsworthiness at a very low level precisely so that they can avoid playing editor.

But the larger issue here is Wood’s breathtakingly expansive definition of what’s covered by the attorney-client privilege. It’s true, of course, that if the Times had simply reported on the contents of documents Project Veritas had turned over to the Times’ lawyers during pretrial discovery in the libel case, the judge would be justified in his outrage. But there is no evidence to contradict Sulzberger’s assertion that the documents were obtained in the normal course of reporting — as Wood concedes.

“There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas,” Wood wrote. “That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its ‘newsgathering effort.’”

Wood follows that up with a weird, gratuitous suggestion that perhaps the Times obtained the documents through bribery. And then, in ruling against the Times, Wood wrote:

“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.”

In other words, the Times is not free to publish or report on the documents in question even though it claims to have obtained them in the normal course of reporting, and even though Wood admits there is no evidence to the contrary.

This is an outrage against the First Amendment. “The opinion is jaw-dropping in its constitutional illiteracy,” wrote Ruth Marcus in The Washington Post.

Added Stephen J. Adler and Bruce D. Brown of the Reporters Committee for Freedom of the Press: “The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just ‘chill’ speech on public affairs, they ‘freeze’ it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.”

What’s worse is that Wood’s ruling provides an incentive for the target of investigative reporting to sue the news organization and then use that suit to shut down any further reporting by claiming attorney-client privilege. Theodore J. Boutrous Jr., a media lawyer whose clients include CNN, put it this way in an interview with the Times:

“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process. The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”

The Times says it plans to appeal Wood’s decision. Good luck with that. Although it presumably would take a few years, eventually the case might make its way before the U.S. Supreme Court. With a right-wing majority, the court could, if it chose, inflict incalculable damage.

We should all hope that Wood’s assault on freedom of the press is halted at the state level — and that this threat to the First Amendment fades to the obscurity it deserves.

Project Veritas is at the vortex of two cases that threaten the First Amendment

James O’Keefe of Project Veritas. Photo (cc) 2020 by Gage Skidmore.

A pair of legal battles involving Project Veritas, a right-wing activist group known for recording its victims on hidden camera and then deceptively editing what they said, have raised a couple of dicey First Amendment issues.

The first involves FBI raids against James O’Keefe, the founder of Project Veritas, as well as against his associates. The raids were connected to the alleged theft of a diary kept by President Biden’s daughter Ashley, even though Veritas did not publish anything from the diary and ended up turning it over to law enforcement.

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As Josh Gerstein writes in Politico, the raids “are prompting alarm from some First Amendment advocates, who contend that prosecutors appear to have run roughshod over Justice Department media policies and a federal law protecting journalists.” He quotes longtime First Amendment advocate Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, as saying:

This is just beyond belief. I’m not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

Maybe, maybe not. Project Veritas is entitled to the protections afforded to any journalistic organization, no matter how sleazy. The question, as Gerstein observes, is whether Veritas did anything illegal in obtaining the diary.

For instance, Daniel Ellsberg, Chelsea Manning and Edward Snowden all broke the law in obtaining secret documents, and they all paid a high price for their actions. The news organizations that published those documents, though, were not prosecuted because there was no evidence they had participated in those crimes. (Julian Assange of Wikileaks is a special case. Source or publisher? Passive recipient or active participant in the theft of classified information? I’ll leave those questions aside for today.)

What we don’t know about the Project Veritas case is whether the government is claiming that O’Keefe and his crew were participants in the theft of the diary. If that’s what they’re charged with, then the First Amendment doesn’t come into play — and I suspect that’s what we’re going to find out. Absent such a claim, though, the actions of the FBI would indeed represent a grave threat to freedom of the press.

The second, and more serious, case involves a libel suit that Project Veritas filed against The New York Times. In a proceeding not directly related to the libel claim, Veritas argued that documents the Times published violated the group’s right to attorney-client privilege. That led to an extraordinary order, reported by Michael D. Grynbaum in the Times:

On Thursday, the trial court judge, Charles D. Wood of State Supreme Court in Westchester County, ordered that The Times “immediately sequester, protect and refrain” from disseminating any of the materials prepared by the Project Veritas lawyer. Furthermore, Justice Wood instructed The Times to “cease further efforts to solicit or acquire” those materials, effectively preventing the newspaper from reporting on the matter.

This is censorship — prior restraint. I’m sure Judge Wood has a law degree, but anyone who’s taken an undergraduate First Amendment course knows this is unconstitutional. Under the Near v. Minnesota standard, the government may not engage in prior restraint except in a few narrowly drawn instances: incitement to violence, serious breaches of national security and obscenity. By contrast, the reasons for restraining the Times in the Project Veritas case are trivial. Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, put it this way:

This is the first prior restraint entered against the New York Times since the Pentagon Papers, and it is an outrageous affront to the First Amendment.

Prior restraints — which are orders not to publish — are among the most serious threats to press freedom. The trial court should have never entered this order. If it doesn’t immediately vacate the prior restraint, an appellate court must step in and do so.

Two cases, two very different sets of facts. As I said, we’ll have to wait and see on the first case, which might prove to be no big deal. The second case, though, strikes me as a reflection of the low esteem in which the media are held these days. A protection that has allowed news organizations to publish secret government documents as long as they don’t put the country at risk is now being flouted by a state judge for the flimsiest of reasons.

University of Florida backs down on speech ban

The University of Florida has backed down from its outrageous refusal to allow three of its professors to serve as expert witnesses in a lawsuit against the state involving its restrictive new voting-rights law. NPR reports.

Earlier:

DeSantis allies block professors from testifying against voter-suppression law

Sledd Hall, University of Florida. Photo (cc) 1993 by Steven Martin.

Florida Gov. Ron DeSantis had a problem. Three University of Florida professors wanted to serve as expert witnesses for the plaintiffs in a lawsuit aimed at overturning the state’s new law restricting the right to vote.

But then the public university’s administration told the three that they would not be allowed to take part in the case. Problem solved.

This mind-blowing breach of academic freedom was reported by Michael Wines in today’s New York Times. Now, the ban may not hold. Wines interviews experts who say that it certainly violates guarantees of academic freedom and may violate the First Amendment as well.

But DeSantis and his minions have never let such niceties stand in their way. In June, he signed a bill that will require the state’s public colleges and universities to conduct an intrusive survey into the beliefs of students, faculty and staff. A month before that, he turned his signing of the voter-suppression bill into an exclusive event for Fox News. Both of those actions were clear violations of the First Amendment.

Then again, what does DeSantis care? He’s running for president, and there’s nothing more effective for a Republican politician than to attack academics and the media.

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