If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.
Let me explain. On Tuesday, Thomas wrotethat the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.
Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”
We are at a frightening moment. To refresh my understanding of what the First Amendment truly means, I recently re-read Anthony Lewis’ magnificent 2007 book “Freedom for the Thought That We Hate: A Biography of the First Amendment.” I’m glad I did. The late New York Times columnist, who was married to former Massachusetts Supreme Judicial Court chief justice Margaret Marshall, was a giant in his understanding of and reverence for the right to speak and write freely.
James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.
On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”
Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.
My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:
There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.
Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.
Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.
The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.
More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.
The New England First Amendment Coalition is seeking applications for a pair of annual awards to recognize both private citizens and professional journalists who aggressively advance the people’s knowledge of what government is doing — or failing to do — on their behalf.
The Antonia Orfield Citizenship Award and the Freedom of Information Award will be presented at NEFAC’s annual luncheon Feb. 7 in Boston. Candidates for the Citizenship Award should have shown tenacity or bravery in the face of difficulty in obtaining information of which the public has a right to know. Both awards will be presented to New Englanders for activity in the six-state region in calendar year 2013.
Rosanna Cavanagh, NEFAC’s executive director, said that the FOI Award will be a recognition of journalism at its best, working to bring the sometimes shadowy workings of the government into the light of day. Work in broadcast, online or print media is eligible. It will be given to a New England journalist for work that protects or advances the public’s right to know under federal or state law. Preference will be given to applicants who overcome significant official resistance.
Applicants for the FOI Award should submit their story or series along with a cover letter explaining the process of getting the story, why it was a significant accomplishment and how it affected the public. Entries, which also are due by Jan. 8, may be submitted electronically. The entry forms are here.
The luncheon will be held in conjunction with the New England Newspaper & Press Association’s 2014 convention and trade show at the Boston Park Plaza Hotel.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, librarians, academics and private citizens. We work in partnership with the Initiative for Investigative Reporting at the Northeastern University School of Journalism.
In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.
Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)
Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”
Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:
With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.
The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.
Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.
Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.
Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.
Earlier today I attended an event honoring Boston Globe editor Marty Baron as the 2012 winner of the Stephen Hamblett First Amendment Award, presented by the New England First Amendment Coalition.
Baron is the second winner. The first, in 2011, was retired New York Times columnist Anthony Lewis, a longtime defender of the First Amendment.
Baron’s talk is well worth reading in full. Afterwards he sent me the text at my request, and I’m pleased to present it here. I was particularly struck by this, which comes near the end of his speech:
The greatest danger to a vigorous press today, however, comes from ourselves.
This is a moment in American history when the press has been made a fat target. The press is routinely belittled, badgered, harassed, disparaged, demonized, and subjected to acts of intimidation from all corners — through words and actions, including boycotts, threats of cancellations (or defunding, in the case of public broadcasting), and even surreptitious taping, later subjected to selective, deceitful editing. Our independence — simply posing legitimate questions — is seen as an obstacle to what our critics consider a righteous moral, ideological, political, or business agenda. In some instances, they have deployed scorched-earth tactics against us in hopes of dealing a crippling blow.
In this environment, too many news organizations are holding back, out of fear — fear that we will be saddled with an uncomfortable political label, fear that we will be accused of bias, fear that we will be portrayed as negative, fear that we will lose customers, fear that advertisers will run from us, fear that we will be assailed as anti-this or anti-that, fear that we will offend someone, anyone. Fear, in short, that our weakened financial condition will be made weaker because we did something strong and right, because we simply told the truth and told it straight.
The full text of Baron’s prepared remarks — minus an improvised shoutout he gave to classmates from Lehigh University who were on hand — follows.
This award is named after a great publisher, Stephen Hamblett, who helped build a great newspaper, the Providence Journal.
The first award was given, last year, to a magnificent journalist, Tony Lewis — whose talent and erudition made him a leading expert on the First Amendment and one of the country’s pre-eminent columnists, at the New York Times.
And today I get to stand before so many extraordinary leaders in the field of journalism — publishers, writers, editors, journalists of every type — whose dedication to our craft and our mission serves as inspiration to me daily.
The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.
But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.
My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.