A Rhode Island law that was the subject of a 2021 GBH News Muzzle Award has been struck down by that state’s Supreme Court.
The Associated Press reports that Rhode Island’s “civil death” law, under which anyone serving a life sentence was regarded as dead with respect to having access to the justice system, “deprives those persons imprisoned at the ACI for life of their right to bring civil actions in our state courts.” (The ACI is the Adult Correctional Institutions.) The bizarre law stated:
Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.
Last July I awarded a New England Muzzle to Rhode Island’s attorney general, Peter Neronha, a Democrat, for his overzealous defense of a law that didn’t exist in any other state. Among other things, Neronha argued that life in prison — or, for that matter, the death penalty — are more severe punishments than civil death yet pose no constitutional issues.
In fact, as the Rhode Island ACLU pointed out, there are punishments that many would regard as worse than life in prison, or even death. As the ACLU’s state executive director, Steven Brown, explained, civil death means that “an inmate … serving a life sentence could be waterboarded, beaten mercilessly by guards, or held in a cell and denied all food and water, but have no access to our state courts to challenge these egregious violations of his constitutional rights.”
In a press release, the Rhode Island ACLU hailed Wednesday’s decision as “an important victory for the principle that the courts should be open to all for redress.”
Loud, angry protests outside the homes of elected officials have become a staple of the uncivil times in which we live. And Boston Mayor Michelle Wu is taking a few cautious steps toward doing something about it.
As my GBH News colleague Adam Reilly reports, Wu has filed an ordinance that would ban protests outside individual residences between 9 p.m. and 9 a.m. — four fewer hours than the current law allows, which runs from 11 p.m. to 7 a.m. Under the new hours, Wu would have left for work before the anti-vaccine, anti-mask protesters could arrive outside her Roslindale home, where they have been harassing her family and her neighbors.
“We are putting reasonable parameters around the time of day,” Reilly quoted Wu as saying, “because this is where it really comes up against quality of life, and ensuring that we are supporting residents in our neighborhoods to be able to have the health and well-being of getting sleep at night and in the morning.”
I fully support the First Amendment right to protest, and this is a troublesome issue. It seems to me that the protesters ought to have the decency to picket at her public appearances rather than at her home, but decency has little to do with it. Loud, obnoxious protests outside Gov. Charlie Baker’s home in Swampscott may even have played a role in his decision not to seek re-election, though Baker himself has not said one way or the other if that’s the case.
As Adam notes, another, more draconian restriction is being considered on Beacon Hill. State Rep. Steven Howitt, a Seekonk Republican, has proposed that protesters be banned from doing there thing less than 100 yards from an elected official’s home.
Over the weekend, Baker told Jon Keller of WBZ-TV (Channel 4) that the 100-yard limit might be a good idea. “We have neighbors,” Baker said. “For our neighbors who never ran for office, never got elected to anything, this was a nightmare.” (And what’s up with The Boston Globe, which credited an interview that Wu gave to WBUR’s “Radio Boston” program but dismissively described Baker’s appearance on “Keller at Large” as “a television interview”?)
As I wrote recently, Mayor Wu has faced two First Amendment tests in her brief time in the corner office. Fortunately, she and her staff appeared to back off from “media guidelines” that were intended to keep the press at a distance as city workers cleared the homeless encampment at Massachusetts Avenue and Melnea Cass Boulevard.
The protest issue, though, is a knottier one. I think she’s wise to take this in small steps. If the 9-to-9 ordinance helps, great. If not, then more drastic measures may be called for.
Jack Shafer asks an important question: Who is funding Sarah Palin’s legal battle against The New York Times? As Shafer observes in his new Politico Magazine piece, Palin’s legal team overlaps with the lawyers who represented Hulk Hogan in his lawsuit against Gawker. That effort turned out to be funded by Facebook billionaire Peter Thiel, who was aggrieved at having been outed by a Gawker-owned website. Shafer writes:
Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback.
The problem is that when lawsuits are funded by vast sums of dark money, they can have a distorting effect. Hogan’s invasion-of-privacy suit after Gawker published video of him having sex without his permission was certainly worthy of pursuing. But in the ordinary course of such matters, it would have been settled and life would have gone on. Instead, Hogan’s lawyers used secret Thiel money to push the suit all the way to its conclusion, with Gawker ultimately going bankrupt and shutting down. (The site has since been relaunched under new ownership.)
Unlike Hogan’s case, Palin’s libel suit against the Times is entirely lacking in merit. The Times published an editorial falsely tying Palin’s rhetoric to the 2011 shooting of then-congresswoman Gabby Giffords and the killings of six others. But there was zero evidence that the Times acted with “actual malice” (knowing falsehood or reckless disregard for the truth), which is the standard for public officials and public figures.
Palin’s suit shouldn’t have gotten as far as it did, and the devastating defeat she suffered this week ought to put an end to it. But if she’s backed by an endless stream of screw-you money, she can keep pushing, and perhaps get her case eventually heard by the U.S. Supreme Court — where Justices Clarence Thomas and Neil Gorsuch have indicated they’re prepared to overturn or pare back the libel standards that have protected the press since the landmark 1964 Times v. Sullivan decision.
To the extent that fading right-wing icon Sarah Palin had any strategy in pursuing her deeply flawed libel suit against The New York Times, it was this: to force a reconsideration of protections for the press that had stood for nearly 60 years, thus exacting vengeance against her tormenters in what she once infamously labeled “the lamestream media.”
It’s at least theoretically possible that could still happen. But the devastating manner in which she lost has made it less likely, not more, that the U.S. Supreme Court will eventually take her up on her invitation to weaken or overturn its landmark New York Times v. Sullivan decision.
First came U.S. District Judge Jed Rakoff’s move on Monday to throw out the case and rule in the Times’ favor.
Rakoff was troubled by the 2017 Times editorial at the heart of the case, which claimed — falsely — that Jared Loughner, who shot then-U.S. Rep. Gabby Giffords and killed six others in 2011, had been incited by a map put together by Palin’s political action committee that depicted gunsights over Giffords’ district and those of 19 other Democrats.
“I don’t mean to be misunderstood,” Rakoff said. “I think this is an example of very unfortunate editorializing on the part of the Times.” But Palin’s lawyers did not present any evidence that the error was anything other than a sloppy mistake by then-editorial page editor James Bennet, who was contrite and apologetic during his testimony.
Rakoff did not inform the jurors of his ruling, instead allowing them to move ahead with their deliberations in order to assemble a more complete record for the inevitable appeals. That only added to Palin’s humiliation, as all nine jurors voted against her when they announced their verdict on Tuesday.
“Your job was to decide the facts, my job is to decide the law,” Rakoff said. “As it turns out, they were in agreement in this case.”
Press advocates had worried that the case could substantially weaken Times v. Sullivan, a 1964 court ruling that public officials cannot win a libel suit unless they are able to show that a false, defamatory story about them was published or broadcast with “actual malice” — that is, with the knowledge that it was false, or with reckless disregard for the truth. That protection was later extended to public figures.
Palin is all of the above — a former Alaska governor and Republican vice presidential candidate who transformed herself into an all-purpose celebrity. A ruling in her favor would have rendered the actual-malice standard meaningless.
There are, of course, those who have railed against Times v. Sullivan for years. As a presidential candidate in 2016, Donald Trump vowed he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
And as I’ve written previously, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have said they would like to revisit Times v. Sullivan. But though Thomas appears ready to overturn the decision in its entirety and return libel law to the states, Gorsuch has indicated he would take a more subtle approach. Because the Palin verdicts are so clear-cut, it may be difficult for the justices to use them as a reason to sink their fangs into the Sullivan decision.
Rakoff’s unusual two-part approach presents an additional obstacle to Palin’s hopes for winning on appeal. As David Folkenflik reported for NPR, if an appeals court were to set aside Rakoff’s verdict, the jury’s verdict would still be in effect.
Finally, the case helped demonstrate the importance of First Amendment protections even for bad journalism — which the Times’ editorial surely was. Bennet inserted language into an editorial — “the link to political incitement was clear” — that was patently false and defamatory. There was no connection between Palin’s map and the shooting of Gabby Giffords and others. (Although it would not be surprising to learn that the jury considered the fact that Palin really did publish that grossly irresponsible map.)
But the media must have the freedom to report on matters of public importance without being subjected to crippling lawsuits because of inadvertent mistakes. As Justice William Brennan wrote in the Sullivan decision, “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’”
So Times v. Sullivan lives — for now. Whether Palin’s lawyers will somehow be able to transform their resounding defeat into a winner on appeal remains to be seen. But a federal judge and a jury of Palin’s peers saw through her bogus complaint. For now, that’s enough.
Sarah Palin’s bogus libel suit would appear to be enough First Amendment excitement involving The New York Times. But there’s been another important development. A New York state judge’s ruling that the Times could not publish documents it had obtained belonging to the right-wing undercover operation Project Veritas has been stayed by a state appeals court. Michael Grynbaum reports in the Times:
In a decision made public on Thursday, the appeals court said the order would not be enforced until a formal appeal could be heard. The decision means that, for now, The Times can publish certain documents and will not have to turn over or destroy any copies of the documents in its possession.
As I wrote recently, Judge Charles D. Wood had prevented the Times from publishing the documents on the grounds that Project Veritas is in the midst of suing the Times for libel, and that the documents were protected by attorney-client privilege. But the Times has contended that it obtained the documents as a result of its reporting, not from discovery in the legal case, and Veritas has presented no evidence to the contrary — as Wood himself conceded.
Wood’s stunning overreach should have been overturned within hours, and I’m shocked that it’s taken this long. The First Amendment principle that prior restraint should only be exercised in the rarest of circumstances. That’s why the Supreme Court allowed the Times and The Washington Post to publish the Pentagon Papers despite the Nixon administration’s claim that to do so was a serious violation of national security. Wood’s decision in the Project Veritas case reads like a parody.
Here’s what the Times should do next: publish all the documents. Today. And encourage widespread copying. It’s not enough just to push back at Wood. His defiance of constitutionally guaranteed protections for the press needs to be held up to widespread condemnation.
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.
The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.
Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.
Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.
There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.
After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)
There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.
So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”
In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)
The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?
A couple more points about the Palin case.
First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.
Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.
It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”
Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.
I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.
Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”
Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.
Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.
Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.
Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.
It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.
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.
In the first instance, her office sent out a poorly worded advisory asking that reporters keep their distance from homeless people while city workers removed their encampment at Massachusetts Avenue and Melnea Cass Boulevard. In the second, hate-spewing demonstrators have been gathering in front of Wu’s house in Roslindale to protest a requirement that city employees be vaccinated against COVID-19 and that restaurants and other businesses mandate vaccines.
The “media guidelines” were sent out on Jan. 11, the day before the city cleared the area around Mass. and Cass. Reporters and photographers were “advised” to stay 50 feet away from individuals; to refrain from capturing images of individuals’ faces; and to “allow enough space for outreach workers to engage with individuals in private.”
The 50-foot request was later amended to 10 feet — an improvement, but still not enough for reporters to walk up to people and ask if they’d like to be interviewed. “As soon as I saw the guidelines, I emailed the press office and said ‘You can’t tell us how to report,’” Boston Globe columnist and associate editor Adrian Walker wrote in a public Facebook comment.
Kelly McBride, senior vice president and chair of the Craig Newmark Center for Ethics and Leadership at the Poynter Institute, also took a dim view of the advisory.
“I’m always wary when government officials start telling the press how to behave ethically,” she said in an emailed comment. “This may sound shocking, but sometimes government folks are more interested in avoiding accountability for their actions and also making themselves look good than they are in nurturing a free press that serves the public interest.”
Despite liberal use of the word “please,” it’s unclear whether City Hall intended the guidelines to be mandatory; the mayor’s press office declined to comment. In any case, it doesn’t appear that there were any serious efforts at enforcement, as reporters were able to interview homeless people while outreach workers were moving through the area.
“City officials came over to me and asked me not to take pictures of people’s faces, which I wouldn’t have done anyway without permission but I appreciated — they also told me to back up and give space, but mostly I was fine interviewing people,” my GBH News colleague Tori Bedford told me by email. She added: “I think the intention was to prevent the callous treatment of people that occurred last time, but it neglected how the press acts as an accountability agent to witness any callous treatment by the city and it’s not the city’s place to tell us how to do our jobs on a public street.”
As Bedford said, there have been reports of journalists acting insensitively toward homeless people during previous operations at Mass. and Cass. But it’s crucial that the media be allowed access to make sure that city workers are treating people with respect as well. Besides, the encampment was on public property, and attempting to restrict where reporters could go and what they could do was a violation of the First Amendment’s guarantee of freedom of the press.
Paul Bass, the editor and founder of the New Haven Independent, made another important point in a public comment: the guidelines denied agency to the very people the city was attempting to protect. “I agree such rules are outrageous,” he wrote. “They are also patronizing and controlling: homeless people, like anyone else, have the right to decide if they want to tell their story!”
Veteran political analyst Jon Keller of WBZ-TV (Channel 4) said Mayor Wu’s advisory appeared to go beyond anything he had seen from Mayors Tom Menino or Marty Walsh.
“Without knowing for sure, I suspect that they didn’t want any embarrassing feedback from these interactions to be broadcast,” Keller said. “It had the whiff of something drawn up by a PR or a press aide with the mayor’s image and the image of her administration foremost in mind. Now, that may well be their job as they see it, but this is not the right time or situation.”
Not to make too much of this — despite the admonition to keep 10 feet away, the media were not prevented from doing their jobs. But if city officials had problems with the way individual journalists had behaved on previous occasions, they should have dealt with them directly rather than send out a blanket set of rules.
How much abuse should elected officials have to put up with when they’re at home with their families? In recent days, a small group of bullhorn-wielding protesters has been gathering in front of Mayor Wu’s house in Roslindale to denounce her vaccination mandate. Wu lives in a two-family home with her husband, her two children and her mother.
As Wu tweeted over the weekend, the rhetoric has become increasingly ugly. “They’ve shouted on megaphones that my kids will grow up without a mom bc [because] I’ll be in prison,” she said. “Yesterday at dinner my son asked who else’s bday [birthday] it was bc the AM chant was ‘Happy birthday, Hitler.’”
To have a chance at healing & building community, we can’t keep normalizing hate.
They’ve shouted on megaphones that my kids will grow up without a mom bc I’ll be in prison.
Yesterday at dinner my son asked who else’s bday it was bc the AM chant was “Happy birthday, Hitler.” https://t.co/4I6LwwaPCJ
In an ideal world, protesters would restrict their activities to public venues and events and leave political figures alone when they’re home. But social mores are breaking down and incivility is on the rise. And it’s not just Wu. Gov. Charlie Baker’s home in Swampscott has been the site of multiple protests. There has even been speculation that the protests were among the reasons Baker decided not to seek a third term. Certainly Wu’s and Baker’s neighbors didn’t sign up for such abuse.
The challenge is that any action against such demonstrations would clash with First Amendment guarantees of freedom of speech, assembly and petitioning for the redress of grievances. The protesters are, after all, on public streets.
State Rep. Steven Howitt, a Seekonk Republican, has filed legislation to ban demonstrations within 100 yards of an elected official’s home. If such a bill were to become law, there’s little doubt that it would face a constitutional challenge. But it’s also possible that a narrowly drawn statute focusing on noise and intrusiveness would pass muster as a content-neutral time-place-and-manner restriction, according to the noted civil-liberties lawyer Harvey Silverglate.
The alternative would be to move high-profile politicians into official residences away from residential neighborhoods. That would be a shame. It strikes me as a good thing that our leaders live among us, even if the benefit is mainly symbolic. Sadly, that may no longer be possible.
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:
To have a chance at healing & building community, we can’t keep normalizing hate.
They’ve shouted on megaphones that my kids will grow up without a mom bc I’ll be in prison.
Yesterday at dinner my son asked who else’s bday it was bc the AM chant was “Happy birthday, Hitler.” https://t.co/4I6LwwaPCJ
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.
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.
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.