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.
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.
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.
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.
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.
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.
Is this Devin Nunes’ cow? Photo via Wikimedia Commons.
Trouble has been bubbling for the past several years regarding libel protections for the press.
In 2019, U.S. Supreme Court Justice Clarence Thomas wrote that it was time to reconsider the landmark 1964 ruling of New York Times v. Sullivan, which decreed that public officials can’t bring a successful libel suit unless they can prove that false, defamatory material about them was published in the knowledge that it was false or with reckless disregard for the truth. (That standard was later extended to public figures as well.)
Then, as I wrote earlier this year, Thomas was joined by Justice Neil Gorsuch in an opinion so slick you could slip on it and get hurt.
Next week, the court will consider whether to hear two libel cases that would give them an opportunity to weaken the Times v. Sullivan protections. Thomas and Gorsuch may prove to be outliers, but given the court’s new supercharged conservative majority, we shouldn’t take anything for granted. First Amendment lawyer Floyd Abrams writes in The New York Times:
Should the court agree to hear one or both of the libel cases does not mean, of course, that either or both would be overruled…. But it is troubling that two of the court’s nine justices have criticized Sullivan and seem ready to overrule it. Only four votes are required for the full court to take up cases, and if it does so, a fifth would be needed for any ruling.
And that’s not the only sign of trouble on the libel front. Erik Wemple of The Washington Post details a bizarre case involving U.S. Rep. Devin Nunes, a California Republican who is so litigious that he once sued a Twitter account called “Devin Nunes’ Cow.”
I’m not going to go deep into the details; Wemple’s got that nailed down for you. But the outline of it is that Nunes sued the journalist Ryan Lizza over an article he wrote for Esquire. Nunes’ libel claim appears to be hanging by a thread — again, because it seems unlikely that Nunes will be able to meet the Times v. Sullivan standard. But at some point after he filed his lawsuit, Lizza tweeted out a link to the article. Nunes, of course, claimed that was libelous as well.
I noticed that Devin Nunes is in the news. If you’re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I’ve got a story for you… https://t.co/yzXHlCihDY
Rather than tossing the Twitter claim, the U.S. Court of Appeals for the Eighth Circuit have kept it alive for further consideration, “even though” as Wemple writes, “other courts have ruled that just linking to a long-standing story doesn’t constitute ‘republication.'” The court ruled that because Nunes’ suit put Lizza on notice that his story might contain falsehoods, then he should have refrained from tweeting it out (never mind that Lizza insists his story was true). But Wemple quotes Jeffrey Pyle, a Boston-based First Amendment lawyer at Prince Lobel Tye:
Until now, the courts have been unanimous that hyperlinks, retweets, and other references to allegedly defamatory articles are not “republications.” The Eighth Circuit departs from this consensus without much, if any, explanation why.
Journalists are able to do the work they do because they don’t have to worry about frivolous lawsuits. That has now come under question, and we all need to keep a close eye on what happens next.
Video of Boston Police Sgt. Clifton McHale bragging about driving his cruiser into protesters was at the heart of our lead GBH News Muzzle Award for 2021. The Muzzle was giving to the Boston and Worcester police departments for their violent suppression of Black Lives Matter demonstrations last year following the police killings of George Floyd and Breonna Taylor.
Incredibly, McHale is being let off with a slap at the wrist and has returned to duty. Eoin Higgins, who obtained bodycam footage of McHale and other officers in the original story for The Appeal last December, broke the news of McHale’s unconscionably short suspension of eight to 10 days on Thursday for his newsletter, The Flashpoint.
“It makes you wonder what a Boston Police officer has to do to get fired,” attorney Carl Williams, who originally provided the bodycam footage to Higgins, was quoted as saying. “How in an unprecedented time of calls for police accountability can this be happening?”
In the video, McHale can be seen and heard excitedly telling a fellow officer about his exploits:
Dude, dude, dude, I fuckin’ drove down Tremont — there was an unmarked state police cruiser they were all gathered around. So then I had a fucker keep coming, fucking running, I’m fucking hitting people with the car, did you hear me, I was like, “get the fuck—”
But when McHale realizes he’s being caught on tape, he tries to back down:
Oh, no no no no no, what I’m saying is, though, that they were in front, like, I didn’t hit anybody, like, just driving, that’s all.
This is not the first time that McHale has crossed the line. Laura Crimaldi reports in The Boston Globe that McHale served a one-year suspension for a 2005 incident “after an internal investigation concluded he had engaged in ‘inappropriate sexual relations with [a] highly intoxicated woman.'” As Globe columnist Adrian Walker writes, “Clifton McHale still carries a badge, and that fact shouldn’t sit well with anyone in Boston.”
Despite his boasting, apparently McHale didn’t actually drive his cruiser into anyone. But that doesn’t mean he should have gotten off with such a light penalty. In fact, he should have been fired.
Acting Mayor Kim Janey denounced McHale’s light punishment. And whoever wins the mayoral election, Michelle Wu or Annissa Essaibi George, is going to have her hands full in attempting to reform the Boston Police Department.
Is it permissible to call someone an Iranian spy if the facts are somewhat more nuanced than that? Apparently the answer is yes — at least according to U.S. District Judge Allison Burroughs.
Burroughs recently dismissed a libel claim brought in Boston by Kaveh Afrasiabi against United Press International and Struan Stevenson, writing that an article written by Stevenson, whose headline referred to Afrasiabi as an “Iranian spy,” was a matter of clearly labeled opinion, which is protected by the First Amendment. I learned about the case from Adam Gaffin, who wrote about it at Universal Hub last Friday.
There are a lot of fascinating details in Burroughs’ opinion. Most of it is based on long-settled law that opinion is protected as long as there is some factual support for it, or if it cannot be proven true or false. Afrasiabi’s complaint was based on the headline, “Iranian spy arrested by FBI was wolf in sheep’s clothing.” Burroughs found that “wolf in sheep’s clothing” was pure opinion, whereas the reference to him as a spy was a matter of opinion grounded at least in part in the factual record as well as because the entire piece was opinion.
“Although the term ‘spy’ is arguably capable of being proved false, the phrase ‘wolf in sheep’s clothing’ plainly is not,” she wrote. “Given that the term ‘Iranian spy’ is followed by ‘a wolf in sheep’s clothing,’ the entire headline, read together as it must be, is clearly a statement of opinion.”
Moreover, Afrasiabi has been charged with failing to register with the U.S. government under the terms of the Foreign Agent Registration Act. Afrasiabi has asserted that he never engaged in espionage against the United States.
As Gaffin observes, the judge’s ruling also references a Boston Herald case involving the suicide of Brad Delp, lead singer of the band Boston, which found that you can’t go looking for nuance in headlines. Quoting from that decision, she wrote: “A newspaper need not choose the most delicate word available in constructing its headline; it is permitted some drama in grabbing its reader’s attention, so long as the headline remains a fair index of what is accurately reported below.”
Here is the heart of Judge Burroughs’ decision, which found that Stevenson laid out the facts, allowing readers to determine whether they agreed with the headline or not:
Because Mr. Stevenson accurately presented the facts surrounding Dr. Afrasiabi’s background, arrest, and criminal charges in the Article, neither he nor UPI can be held liable for defamation based on his opinion that those facts render Dr. Afrasiabi an “Iranian spy” and a “wolf in sheep’s clothing.” … Put slightly differently, because the Article permits the reader to form his or her own opinion about whether the facts presented make Dr. Afrasiabi a “spy” and/or “a wolf in sheep’s clothing,” the statement is not actionable.
Finally: What, may you ask, is UPI these days? Does it have anything to do with the UPI of the 20th century, which for decades was The Associated Press’ main rival? The answer is no, not really.
According to Wikipedia, which seems to have the most up-to-date information, UPI today is part of News World Communications, which in turn was founded by the Rev. Sun Myung Moon of the Unification Church. News World used to own The Washington Times as well, but that paper is now owned by a different Moon entity.
Now here’s an interesting First Amendment dilemma. Judges in most states have broad discretion in whether to allow television cameras or audio recorders into their courtrooms. May the government also ban news organizations from broadcasting the official audio record of a criminal proceeding?
Under Maryland state law, the answer is yes: “The Maryland Code forbids anyone, including the media, from broadcasting official court recordings of state criminal court proceedings that were lawfully obtained from the court itself,” reported McKenna Oxenden in The Baltimore Sun.
But now that law is tottering on the brink of being declared unconstitutional. As Oxenden and Michael Kunzelman of The Associated Press reported last week, a U.S. district court judge has ruled that NPR may use official audio as part of its podcast “Embedded.” An upcoming episode will focus on the trial of Jarrod Ramos, who killed five people at The Capital Gazette in Annapolis, Maryland, in 2018. Ramos was found criminally responsible earlier this year. The current proceedings involve his sentencing.
Judge Richard Barrett’s ruling pertains only to NPR’s request. But a challenge to the constitutionality of the law itself is under way as well.
In defending the law, the office of Maryland Attorney General Brian Frosh disingenuously wrote that the ban, intended to maintain the “fairness and integrity” of criminal cases, does not infringe on freedom of the press because news organizations are free to use transcripts of the recordings in any way they like:
The statute does not prohibit any person from describing, transcribing, or reenacting any portion of a criminal trial. It bans only methods of communication that depict participants’ images and voices from inside the courtroom.
Bennett was having nothing of it. As the AP noted, Bennett rejected that argument in an earlier ruling, writing that the law “constitutes a prior restraint on speech that is irreparable as a matter of law.”
With the Maryland law seemingly well on the way to being overturned, it’s time to re-examine why television and radio journalists are usually banned from using the tools of their jobs when covering criminal cases. The excuse is generally the same as that advanced by Frosh — that they can attend and take notes like everyone else. But the First Amendment should guarantee that they can report from the courtroom just as they do from any other location: with video and audio so the public can see and hear how justice is being administered.
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