Tag: Supreme Court

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.

Previously published at GBH News.

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.

How new threats to libel protections could weaken Times v. Sullivan

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.

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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.

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.

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

How FCC ownership regulations helped shape the Boston media landscape

Photo (cc) 2008 by Dan Kennedy

The U.S. Supreme Court on Thursday unanimously upheld a 2017 ruling by the FCC to loosen media ownership regulations, including an end to the so-called cross-ownership ban. That ban prohibits one entity from owning a newspaper and a TV or radio station in the same market.

The FCC’s long, tortured history on cross-ownership shaped the Boston media scene from the 1950s through the ’80s. Although the ban wasn’t formalized until 1975, the FCC had much to say about the issue well before that. No one told the story better than John Aloysius Farrell in his 2001 book “Tip O’Neill and the Democratic Century,” which I wrote about for The Boston Phoenix.

It’s a pretty amazing tale, and it’s crucial if you want to understand how the dynamic between The Boston Globe and the Boston Herald played out over the course of those decades. The very short version: the Boston Herald Traveler, with the support of the Kennedys, obtained the license to Channel 5 in the 1950s through corrupt means. The Globe, with the help of O’Neill, then a young congressman, exposed that corruption. That, in turn, led to the Herald’s losing the license to Channel 5 in the early 1970s, thus cementing the Globe’s status as the city’s dominant daily newspaper.

The final act played out in the late 1980s when Rupert Murdoch, who then owned the Herald, bought Channel 25 and sought a waiver from the FCC that would have allowed him to keep both. Sen. Ted Kennedy slipped an amendment into a bill that made it virtually impossible for the FCC to grant such a waiver. Several years later Murdoch sold the Herald to Pat Purcell, a longtime lieutenant. Although the Herald enjoyed a few years of prosperity under Purcell, it eventually entered a long, slow decline, ending in bankruptcy and the sale to the hedge fund Alden Global Capital in 2018.

So now that the cross-ownership ban is gone, what’s next? A number of organizations, including the media-reform group Free Press, opposed the FCC’s move, arguing that it will make it more difficult for local groups, including those representing women and people of color, to acquire media outlets. I agree, although there’s also a case to be made that newspapers and, to some extent, broadcast media are so moribund that ownership regulations are more about the last century than this one.

It does seem likely to me that we’re going to see newsrooms that combine newspaper and broadcast operations in an attempt to save money. We’ll see less diversity and less coverage as a result. But given that virtually all media have shifted to the unregulated internet, the ultimate effect of such consolidation is yet to be determined.

Beyond ‘court packing’: Repairing the Supreme Court in an era of minority rule

Photo (cc) 2020 by Geoff Livingston.

Previously published at GBH News.

Last spring I warned that the media might seek out dubious issues to even things up if former Vice President Joe Biden built a substantial lead over President Donald Trump. So far we haven’t seen much of that. But Biden’s reluctance to say whether he would try to expand the size of the Supreme Court has proved to be something of a speed bump for the Biden-Harris campaign.

“Harris Dodges Questions on Support for Supreme Court Packing at Debate,” said CBS News following Sen. Kamala Harris’ encounter with Vice President Mike Pence. “Biden and Harris Need an Answer on Court Packing,” proclaimed The Atlantic. And they were hardly alone. (Thanks to Eric Boehlert’s newsletter, Press Run, for rounding up the headlines.)

The problem with this focus on “court packing” isn’t that it’s not a legitimate issue. We would all like to know if a Biden administration would seek to add seats. What’s really at issue, though, are matters of language and context.

“Court packing” sounds like an abuse of power rather than something the president and Congress can do as a matter of law. The context, of course, is that the Republicans, under Senate Majority Leader Mitch McConnell, stole one court seat by refusing to consider Judge Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia, even though the nomination came months before the 2016 election. And now McConnell is on the verge of stealing a second seat by ramming through the nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg even as ballots in the presidential election are already being cast. Yet it is Biden who is facing questions.

“What makes this so especially bizarre,” writes Boston College history professor Heather Cox Richardson in her newsletter, Letters from an American, “is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology.”

Once Barrett has been confirmed, and there is little doubt about that, Trump will have named three of the nine justices under the most undemocratic, unrepresentative circumstances imaginable.

As we all know, Trump lost the popular vote to Democratic nominee Hillary Clinton by 48% to 46%, a margin of more than 2.8 million. What’s less well known is that Republican senators represent fewer people than Democratic senators even though they hold the majority.

During the 2017-’08 session, for instance, when Justices Neil Gorsuch and Brett Kavanaugh were confirmed by slim margins, (54-45 and 50-48, respectively), the Senate’s 50 to 52 Republicans (the number changed several times) represented about 44% of the country’s population. Democrats and independents who caucus with them represented 56%. The 53 Republicans who will decide Barrett’s fate represent less than 47% of the country. (Click here for a chart breaking down the numbers. The 2017-’18 figures are based on 50 Republican senators.)

If you’re thinking this is not how we ought to conduct business in a democracy, well, you’re right. And yet there is reason to doubt that modern Republicans even support the idea that the majority ought to rule. Last week, for instance, U.S. Sen. Mike Lee, R-Utah, tweeted a message right out of the authoritarian playbook: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

And sure enough, new research by psychology professor Bob Altemeyer and Nixon administration alumnus John Dean shows that Trump supporters are increasingly eschewing elections in favor of the strongman system of government, according to The Washington Post. For instance, about half of Trump supporters agreed that “once our government leaders and the authorities condemn the dangerous elements in our society, it will be the duty of every patriotic citizen to help stomp out the rot that is poisoning our country from within.”

Which brings me back to where I started. A president who lost the popular vote will have nominated three Supreme Court justices, confirmed by a Senate controlled by a party that represents millions fewer Americans than the opposition Democrats. Two of those three justices, Gorsuch and Barrett, will owe their presence to Republican norm-shattering. And Republican support for democracy in general appears to be waning.

Given all that, the possibility that Biden may seek to enlarge the size of the court sounds like a good move.

Several years ago I offered a few ideas on how to fix the court — to repair the damage done by McConnell and restore its image as a trusted institution. The court is still in drastic need of fixing. So let me offer a few more — none original with me, but proposals I’ve gleaned following the death of Justice Ginsburg. More than anything, the court has become too important. The following steps would make every vacancy less a matter of life and death than it is now.

First, if Barrett is confirmed, Biden is elected president and the Senate flips to blue, Democrats should expand the court by two members. Some progressives have argued for four new seats, but that would be an overreach. Two new seats would restore the ideological balance of the court that existed before Justice Scalia’s death. Perhaps the number could move back to nine over time.

Second, justices should be subjected to term limits. Eighteen years sounds about right.

Third, each president ought to get the same number of picks per term. Two? If a president is re-elected, then yes, they’d get four picks, which is a lot. But the problem now is that there isn’t enough turnover, and what little there is takes place mainly because of death.

I’ll leave it to better minds than mine to figure out how to square two picks per term with an odd-numbered court of either nine or 11 members.

Our system is profoundly broken. The challenges we face don’t lend themselves to easy solutions. Applying the one-person, one-vote rule that is at the heart of democratic governance, for example, would require major constitutional changes in the form of abolishing the Electoral College and changing the way we choose senators. That’s not going to happen any time soon.

So let’s move beyond the gotcha issue of whether Joe Biden wants to “pack” the Supreme Court. We can reform the court by turning down the temperature and moving it out of its current central role in our political culture. Expanding the size of the court, perhaps temporarily, as well as imposing term limits and guaranteeing a regular rotation of justices, might return us to the days when all but the most extreme nominees were confirmed with consensus support.

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Why Justice Stevens’ fraught relationship with the First Amendment still reverberates

Justice Stevens

Previously published at WGBHNews.org.

The late Supreme Court Justice John Paul Stevens today is being hailed as a liberal beacon who took strong stands against the death penalty and in favor of gun control and limits on political spending.

But despite his well-deserved reputation as a judge who was motivated by decency and principle, his legacy with regard to the First Amendment is mixed.

For one thing, as Linda Greenhouse observed in The New York Times, Stevens in 1989 broke with his colleagues when they overturned a Texas law that banned flag-burning. “His patriotism was of the old-fashioned, unabashed variety,” wrote Greenhouse by way of explanation.

For another, on two important cases that pitted the right to privacy against freedom of the press, Stevens sided against the media. In one instance he was on the losing end. In the other, though, he wrote the majority opinion, limiting public access to government information in a decision that reverberates three decades later.

First, Stevens’ dissent. Starting with New York Times v. Sullivan in 1964, the Supreme Court began issuing a series of decisions that made it more difficult for plaintiffs to win libel suits. In the Times case, the court ruled that public officials suing for libel would have to show not only that false, defamatory material had been published about them, but that the publisher had acted with “actual malice” — that is, with the knowledge that it was false or with reckless disregard for the truth. That standard was later extended to public figures as well. Then, in Gertz v. Robert Welch Inc. (1974), the court ruled that even private figures would at least have to prove negligence in addition to falsehood and defamation.

These decisions greatly strengthened freedom of the press. Still to be settled, though, was the matter of proof. Traditionally, after a plaintiff sued for libel, it was up to the publisher to prove that the material in question was true. That changed with Philadelphia Newspapers Inc. v. Hepps (1986), in which the court ruled by a five-to-four margin that it should be up to the plaintiff to prove falsity.

Stevens was outraged. In his dissent, he wrote that “in order to comprehend the full ramifications of today’s decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story, and that it was published for no other purpose than to destroy the reputation of the plaintiff.” He added: “I simply do not understand … why a character assassin should be given an absolute license to defame by means of statements that can be neither verified nor disproved.”

Three years later, though, Stevens was on the winning side in ruling that public records may become private in some circumstances, and that the privacy rights of an individual can sometimes outweigh the public’s right to know.

The case, Department of Justice v. Reporters Committee for Freedom of the Press, was decided unanimously in 1989, but it had been many years in the making. Starting in 1978, Robert Schakne, a reporter for CBS News, had been seeking FBI rap sheets about the four Medico brothers, who were alleged organized crime figures with ties to a corrupt congressman named Daniel Flood. Schakne’s case, fought on his behalf by the Reporters Committee, was thrown out in 1985 at the district court level. But a federal appeals court ruled in his favor in 1987. By the time the matter reached the Supreme Court, only one of the Medico brothers was still living. That set the stage for Justice Stevens.

The rap sheets Schakne sought consisted entirely of public records that could be searched for at courthouses and other venues. Yet Stevens wrote that they had ceased to be public because they had been compiled and computerized by the FBI. Thus, the records were covered by the privacy exemption to the federal Freedom of Information Act, or FOIA.

As Stevens put it, there is a “distinction … between scattered disclosure of the bits of information contained in a rap-sheet and revelation of the rap-sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal history files demonstrates that the individual items of information in the summaries would not otherwise be ‘freely available’ either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were ‘freely available,’ there would be no reason to invoke the FOIA to obtain access to the information they contain.”

But that was only part of the test. Under FOIA, records deemed private may still be released if there is a compelling public interest in doing so. The Reporters Committee argued that disclosure of the rap sheets was warranted because the Medico brothers had dealings with Flood. Again, Stevens ruled against the committee, writing that the documents would have provided information about the Medicos rather than the government.

Stevens wrote that “although there is undoubtedly some public interest in anyone’s criminal history, especially if the history is in some way related to the subject’s dealing with a public official or agency, the FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”

The decision was a blow against freedom of the press. Even though rap sheets by their nature are filled with falsehoods and rumors, it seemed (and still seems) absurd that government documents that could have provided information about the Medicos’ dealings with a congressman who had pled guilty to corruption charges were not made public. As Jane Kirtley, then the director of the Reporters Committee, put it at the time, the decision had “very serious implications for public access to government information. It says that today something may be a public document but tomorrow it’s not because it’s on a computer tape.”

And yet there was something admirable about Stevens’ insistence that the privacy rights of individuals should take precedence over the interests of the news media. As a journalist and as a First Amendment advocate, I wish Stevens and his fellow justices had ruled otherwise. But today we are at the mercy of a government that has been spying on us for years and of technology giants who store all kinds of personal data about us for purposes benign and otherwise. I think it says something positive about Stevens’ character that he stood up for privacy in the early days of computerized databases.

It says something, too, for the court we had and lost. Justice Stevens was a giant, and he will be missed.

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Trump did not say the 14th Amendment is unconstitutional

(Courtesy of the Byrom-Daufel family) Most 19th Century Chinese immigrants were single men, but a few families lived in the Portland area. The Byrom-Daufel family of Tualatin retained this portrait, but descendents no longer have the Chinese family name. Scan from print.
Chinese immigrants in Oregon. Birthright citizenship dates to 1898, when the Supreme Court cited the 14th Amendment in overturning a California law. Photo published by The Oregonian, courtesy of the Byrom-Daufel family.

My Facebook feed is filling up with posts from liberal friends informing me that Donald Trump is, among many other bad things, an ignoramus when it comes to the Constitution.

Trump allegedly stepped in it on Tuesday, telling Bill O’Reilly of Fox News that the 14th Amendment wouldn’t necessarily impede his rather horrifying proposal to deny citizenship to the children of undocumented immigrants born in the United States.

Cue the outraged headlines. “Donald Trump says 14th Amendment is unconstitutional” is the takeaway at Yahoo Politics. Or consider this, from Politico: “Trump to O’Reilly: 14th Amendment is unconstitutional.” Or Mother Jones: “Trump: The 14th Amendment Is Unconstitutional.”

Of course, it’s fun to think Trump is such a buffoon that he doesn’t realize something that’s part of the Constitution can’t be unconstitutional. All he’d need to do is spend a few minutes watching “Schoolhouse Rock!” videos on YouTube to disabuse himself of that notion.

But that’s not what Trump said. In fact, Trump made the perfectly reasonable assertion that the federal courts may be willing to revisit how they interpret the 14th Amendment. Trump told O’Reilly:

Bill, [lawyers are] saying, “It’s not going to hold up in court, it’s going to have to be tested.” I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree…. But many of them agree with me — you’re going to find they do not have American citizenship. [Quotes transcribed by Inae Oh of Mother Jones, whose story is more accurate than the headline under which it appears.]

Birthright citizenship is not exactly a new issue. Jenna Johnson of The Washington Post noted earlier this week that, back in the early 1990s, none other than future Senate Democratic leader Harry Reid supported reinterpreting the 14th Amendment in order to end automatic citizenship — thus confirming a remark made on the campaign trail by Scott Walker, one of several Republican presidential candidates who have joined Trump in opposing it.

In searching the archives, I couldn’t find a specific reference to Reid. But The New York Times reported in December 1995 that House Republicans and some Democrats supported an end to birthright citizenship, with most arguing that a constitutional amendment would be needed and others claiming that legislation would suffice. Any attempt to enforce such legislation would have triggered exactly the sort of court challenge that Trump envisions.

And it’s not as though the 14th Amendment has stood immutable over time. After all, it wasn’t until 1954 that the Supreme Court ruled, in Brown v. Board of Education, that the amendment’s guarantee of “equal protection of the laws” forbade segregation in the public schools.

Birthright citizenship was recognized by the Supreme Court in 1898, three decades after enactment of the 14th Amendment. In that case, according to the 1995 Times article, the court overturned a California law that had been used to deny citizenship to children born in the United States whose parents were Chinese immigrants.

Trump’s rhetoric represents the worst kind of nativism, and he should be held to account for his words. But what he’s actually saying is bad enough. When the media exaggerate and distort, they hand him an undeserved victory.

Also published at The Huffington Post.

The un-Muzzling of anti-abortion protesters

In 1999 I gave a Boston Phoenix Muzzle Award to Susan Fargo and Paul Demakis, two Massachusetts legislators pushing for an abortion-clinic buffer zone. Today the U.S. Supreme Court agreed, ruling that those buffer zones are an unconstitutional abridgment of the First Amendment.

On Greenwald, Kinsley is both right and wrong

Michael Kinsley
Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes
Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)