Apropos the recent posts on the Administration’s leak investigations and the press, I thought I’d note three items by our own Jonathan Adler from when a similar issue arose during the Bush Administration: Reporting Is Not a Crime: Conservatives Should Think Twice About Criminalizing Journalism (National Review Online), A Troubling Prosecution: United States v. Rosen Has Its Thorns (National Review Online), and Prosecuting the Press (a chain of posts on the subject here at the Conspiracy).
Archive for the ‘Freedom to Gather Information’ Category
Leaks to reporters — and investigations of the leaks that included subpoenas of reporters’ e-mail logs and searches of reporters’ e-mail — have been in the news; see this post by Orin about the AP story and this post by Conor Friedersdorf (The Atlantic) about the Fox News story. I thought I’d say a few things about the First Amendment issues involved in such matters, especially in response to the Friedersdorf post.
1. To begin with, let me define the problem, and define it broadly: A wide range of laws that bars certain people from revealing certain information that they themselves learned in confidence, having given a promise of confidentiality. To give just a few examples,
- Federal law (18 U.S.C. § 793) does this (among other things) for secret defense information.
- Federal law does it for confidential income tax information, and many other matters.
- Trade secret law does it for certain kinds of business information (some trade secret claims are civil and some are criminal, but this doesn’t matter for First Amendment purposes).
- Nondisclosure agreements do the same for other kinds.
- Professional regulations and related statutes do this for attorney-client, psychotherapist-patient, and doctor-patient confidences.
- Court orders do this for information gathered through discovery in legal cases.
Relatedly, federal law bars people from electronic eavesdropping on cell phone calls, and also prohibits the illegal eavesdroppers from communicating this information to others. This isn’t exactly the same, because the original misconduct here consists not of illegally leaking information to which one has legal access, but illegally accessing the information in the first place. Still, downstream publication of illegally leaked information and publication of illegally accessed information are quite similar in many ways — they all involve information that by law ought not be communicatable, that the original leaker (or illegal gatherer) has no right to communicate, but that he does communicate to third parties who did not themselves illegally leak or illegally gather the information.
2. These laws are generally seen as constitutional, mostly on the theory that they enforce promises of confidentiality, express or implied, that were legitimately extracted as a condition of access to the information (see Cohen v. Cowles Media (1991) and Seattle Times Co v. Rhinehart (1984)), or, in the case of the cell phone interception law, that the underlying acquisition of the information was illegal. That’s an oversimplification, but it’s a reasonable first approximation.
And in any event, I think it’s pretty clear that it’s constitutional to outlaw leaks of government information by those who have promised to keep it secret. I know there are arguments that the government classifies too much information as secret. But for the government to be trusted, whether by taxpayers, sources of information, foreign governments, or other government employees, it has to be able to punish those government employees who promised to keep a secret (whether a tax return or a defense-related document) but then broke that promise.
3. But what about people who never promised confidentiality, and who just receive — without soliciting or prearranging this — information that they know was illegally leaked (or illegally gathered)? Say you’re a reporter, and you get an unsolicited e-mail revealing something important gleaned from a prominent person’s tax return, a copy of an important secret government document, a business plan to create a controversial product or close a plant or engage in a particular marketing strategy, or a tape of an illegal intercepted conversation in which union members are discussing what sounds like a possible plan to engage in violent crime against management. (“If they’re not gonna move for three percent, we’re gonna have to go to their, their homes .... To blow off their front porches, we’ll have to do some work on some of those guys. Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”) May the law bar even such disclosures by downstream recipients, who never promised confidentiality, never themselves engaged in illegal interception of information, and never solicited the breach of a confidence or illegal interception, or conspired in such an action?
There, the matter is not entirely clear. Bartnicki v. Vopper (2001), the illegal interception case from which the quote above is drawn, holds that revelation of the information by these downstream recipients would be protected by the First Amendment, at least if the released information is important enough and if the initial illegality consisted of illegal interception of cell phone calls. But United States v. Rosen (D.D.C. 2006) holds otherwise as to revelation by downstream recipients of classified defense information. Still, there are very serious First Amendment arguments in favor of protecting such further disclosures by these sorts of downstream recipients.
4. There is, though, an intermediate category of speakers. Part of it consists of those who actively solicit criminal or tortious leaks or information gathering, knowing that what they are seeking is information that the leaker has no right to reveal or to gather. “Could you send me this classified document / tax return / secret about your client? I’ll write a story about it that will promote truth and justice / help advance your ideological agenda / get back at your enemies / make you feel important.” “You know, if you illegally taped that phone call and passed it along to me, there could be a great story in it.” “I like the story idea you’re pitching to me, but I need more proof. Your boss probably has documents that demonstrate this; can you rifle through his desk, and send me a copy of whatever you find?” And part consists of those who actively conspire with the leaker to promote the leak, for instance by working out specific plans that would keep the leaker from getting caught, or by providing tools (physical or electronic) that can help the leaker get the information in the first place.
This is what the government is saying James Rosen of Fox News of did — soliciting the leak of classified documents, aiding and abetting the leak by working out means by which the leaker could leak the documents more safely, and generally conspiring with the leaker. (The government isn’t prosecuting Rosen for this, at least at this point, but it is alleging that he did this, since allegation of such criminal conduct by a newsgatherer allows the government to search the newsgatherer’s papers under 42 U.S.C. § 2000aa, the federal statute limiting searches of newsgatherers.)
And it seems to me that this behavior is rightly treated as criminal. Solicitation of crime (see United States v. Williams (2008)), aiding and abetting crime by providing instrumentalities for the crime, and conspiracy to commit a crime are rightly punishable, and I don’t think that the answer should be different when the crime is an illegal leak of information (however newsworthy that information might be).
Glenn Greenwald (The Guardian) argues the contrary, pointing out that publications of leaked information can be valuable to the public, and are a staple of investigative journalism. But I don’t think this suffices to provide constitutional protection to actively soliciting, aiding, or conspiring with someone who is committing a crime. Perhaps the underlying leak shouldn’t be a crime, or perhaps Congress should limit the criminality just to the leaker. But I don’t see that this is constitutionally mandated, given the longstanding understanding that actively participating in criminal conduct can be prohibited as much as the underlying conduct can be. And note that Bartnicki specifically stressed that, in that case, “respondents played no part in the illegal interception” but rather “found out about the interception only after it occurred” and “their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else,” so Bartnicki doesn’t dispose of the aider/solicitor/conspirator case.
I think this distinction between publication by an unconnected downstream recipient and an aider/solicitor/conspirator responds to Conor Friedersdorf’s argument in The Atlantic that Justices Douglas and Black in the Pentagon Papers case “directly addressed and discredited” the government’s theory in the Rosen/Fox News matter, and that “the Obama Justice Department is using a WWI-era espionage law” in the Rosen/Fox News matter “to criminalize journalism in a way that its authors never intended.” It’s true that Justice Douglas’s opinion, joined by Justice Black, took the view that the federal classified defense information statute, 18 U.S.C. § 793(d), didn’t generally apply to downstream publishers:
There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793 (e) provides that “[w]hoever having unauthorized possession of, access to, or control over any document, writing ... or information relating to the national defense which information the possessor has reason to believe could be used to the injury of theUnited States or to the advantage of any foreign nation, willfully communicates ... the same to any person not entitled to receive it ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
The Government suggests that the word “communicates” is broad enough to encompass publication.
There are eight sections in the chapter on espionage and censorship, §§ 792-799. In three of those eight “publish” is specifically mentioned: § 794 (b) applies to “Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates ... [the disposition of armed forces].”
Section 797 applies to whoever “reproduces, publishes, sells, or gives away” photographs of defense installations.
Section 798 relating to cryptography applies to whoever: “communicates, furnishes, transmits, or otherwise makes available ... or publishes” the described material. (Emphasis added.)
Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.
The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read: “During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy.” 55 Cong. Rec. 1763. During the debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55 Cong. Rec. 2167.
Judge Gurfein’s holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1 (b) that:
“Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.” 64 Stat. 987.
Thus Congress has been faithful to the command of the First Amendment in this area.
But beyond the obvious point that this was just the opinion of the two most-speech-protective Justices on the Court at the time (or perhaps at any time), I think the argument only applies to the “unconnected downstream recipient” publications discussed in item 3. As to the publications by a recipient who solicited, aided, or conspired in the underlying criminal leak, the Douglas/Black statutory argument doesn’t apply, because federal law does cover such behavior: 18 U.S.C. § 2 specifically criminalizes aiding or soliciting a crime, and 18 U.S.C. § 371 specifically criminalizes conspiring to commit a crime. Perhaps there ought to be a First Amendment defense even when those statutes are violated, though I’m skeptical about that. But I don’t see the Douglas/Black statutory argument as relevant here.
5. Finally, just to return to item 1, note that the constitutional question is similar (though not identical) for a wide range of disclosures — and solicitations or conspiracies. If there’s a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there’d be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal breakins into people’s computers, illegal rifling through people’s desks, and so on.
In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records. As Orin notes, the Justice Department has special rules for this sort of thing. Yet there are reasons to doubt whether the government followed these rules. Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.
This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported. The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary information through other means were not undertaken.
Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required. If so, there might not be cause for outrage. But that would hardly make this a “non-story.”
UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.
SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.
The AP reports:
The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.
The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.
In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.
The Justice Department notified the AP on Friday. More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.
UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner. It is, however, one of the few (if only times) the seizing of such records has become public.
UPDATE: And be sure to see Orin’s post above.
YNN Rochester reports:
Amid the filming process for “The Amazing Spiderman 2″ in Rochester, film crews and police, have been walking a fine line with media and civilians over public photography rights.
The question is: if police and production crews tell you not to photograph or videotape their public work, are they violating your civil rights? ...
YNN’s own cameraman was told by police and film crews that he couldn’t shoot video from designated public viewing areas. Civilians who spoke with YNN were given similar instructions. [The mayor, the police chief, and the spokesman for the production company, however, later stated that such photography is permitted. -EV]
Given courts’ recognition of the general right to photograph in public places, I can’t see how photographing film shoots would be any different, so long as the photographer is standing where the public is allowed, and not blocking traffic or some such. In some situation, some commercial distribution of some of the photographs might be copyright infringement or infringement of the right of publicity, but often it won’t capture copyrighted expression, or will be fair use; mere taking of the photographs, and most noncommercial distribution of those photographs, would not be infringing, and in any event the possibility of such infringement strikes me as hardly a matter for the local police. And it appears from the story that the official views of the mayor and police chief are that such photography is indeed permitted.
That’s what the St. Paul Pioneer Press reports:
Andrew Henderson watched as Ramsey County sheriff’s deputies frisked a bloody-faced man outside his Little Canada apartment building. Paramedics then loaded the man, a stranger to Henderson, into an ambulance.
Henderson, 28, took out his small handheld video camera and began recording.... [A] deputy, Jacqueline Muellner, approached him and snatched the camera from his hand, Henderson said. “We’ll just take this for evidence,” Muellner said. Their voices were recorded on Henderson’s cellphone as they spoke, and Henderson provided a copy of the audio file to the Pioneer Press. “If I end up on YouTube, I’m gonna be upset.” ...
Randy Gustafson, spokesman for the Ramsey County sheriff’s office ... said, “It is not our policy to take video cameras. It is everybody’s right to (record) ... What happens out in public happens out in public.”
One exception might be when a law enforcement officer decides that the recording is needed for evidence, he said. In that case, the officer would generally send the file to investigators and return the camera on the spot, Gustafson said....
A week later, Henderson was charged with obstruction of legal process and disorderly conduct, both misdemeanors. He had been filming from about 30 feet away, he said....
The deputy wrote on the citation, “While handling a medical/check the welfare (call), (Henderson) was filming it. Data privacy HIPAA violation. Refused to identify self. Had to stop dealing with sit(uation) to deal w/Henderson.” ...
The allegation that his recording of the incident violated HIPAA, or the federal Health Insurance Portability and Accountability Act, is nonsense, said Jennifer Granick, a specialist on privacy issues at Stanford University Law School.
The rule deals with how health care providers handle consumers’ health information.
“There’s nothing in HIPAA that prevents someone who’s not subject to HIPAA from taking photographs on the public streets,” Granick said. “HIPAA has absolutely nothing to say about that.”
When Henderson tried to get back the camera, another deputy refused to release it, and said (Henderson also recorded this), “I think that what (the deputies) felt was you were interfering with someone’s privacy that was having a medical mental health breakdown. They felt like you were being a ‘buttinski’ by getting that camera in there and partially recording what was going on in a situation that you were not directly involved in.” Somehow the recording on the camera also vanished, though there’s a dispute over how that happened.
It seems to me that there’s no legal basis for this prosecution, or for the seizure of the camera — Minnesota apparently doesn’t have any ban on such recordings, and in any event it seems likely that there’s a First Amendment right to record such police-citizen interactions in public places. (See Glik v. Cunniffe and ACLU v. Alvarez for cases recognizing such a right, in closely related contexts.) Nor can the police step in and punish the photographers in the name of protecting people’s privacy, just as the government may not stop TV stations from recording news footage in public place in the name of protecting people’s privacy.
Thanks to Christopher Rohrbacher for the pointer.
From Ramos v. Flowers (N.J. Super. Ct. App. Div. Sept. 21, 2012):
[W]e conclude that a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any interaction of the police with gang members for the purposes of making a documentary film on that topic.
The facts, as alleged by Ramos, are:
Ramos is a documentary filmmaker. In 2006, he was working on a project about the emergence of gangs in Trenton. Flowers is a police officer employed by the Trenton Police Department. Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers’ actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure.
The U.S. Justice Department opined May 14 that the First Amendment does secure such a right, reaffirming a January letter that I had missed. “Recording governmental officers engaged in public duties,” the letter reasons, “is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”
The letter, addressed to the Baltimore Police Department based on the Department’s past interference with such recording, is consistent with the Seventh Circuit’s May 8 decision in ACLU v. Alvarez (which it doesn’t cite) and the First Circuit’s decision in Glik v. Cunliffe (which it does cite, together with some other cases).
From ACLU v. Alvarez (7th Cir. May 8, 2012) (Judge Sykes joined by Judge Hamilton, with Judge Posner dissenting):
We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here.
The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the re cording is open or surreptitious.
Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content-neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free-speech and free-press guarantees.
I’m just beginning to read the opinions, but I wanted to flag the key holding. [UPDATE: Sorry, meant to also say that this decision reaches pretty much the same result as Glik v. Cunliffe (1st Cir. 2011), which I blogged about last year.]
UPDATE: A few follow-up thoughts:
1. The opinion specifically sets aside the question whether state law could (1) ban surreptitious interception even of public communications, and (2) ban surreptitious interception of communications that the parties would reasonably expect to remain private. (“[T]his case has nothing to do with private conversations or surreptitious interceptions.” “We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”). For an example of a state high court decision that affirmed a citizen’s conviction for surreptitiously recording his encounter with the police, see Commonwealth v. Hyde (Mass. 2001), though the court did not discuss the First Amendment.
But I think the Seventh Circuit’s reasoning should apply to a person’s surreptitious recording of his interactions with the police in the course of their jobs, and not just to open recordings. Among other things, even content-neutral restrictions are immune from strict scrutiny only if they are narrowly tailored to an important government interest and leave open adequate alternative channels for speech (or, here, for gathering the information needed to speak). The Seventh Circuit didn’t decide whether this adequate alternative channels requirement was satisfied here (because it found the law to be overinclusive with respect to any privacy interests that might justify a narrower law), and wasn’t certain that the factor applies to information gathering restrictions, though I think it should so apply given that information gathering restrictions may burden the ability to speak much like direct speech restrictions would. Yet it did suggest that bans on recording information don’t leave open adequate alternative channels:
We note, however, that audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
And this is also true of surreptitious recording, since often surreptitious recording will yield more accurate information about how police officers actually behave in ordinary interactions with citizens (as opposed to how they behave when they know that their statements could be heard that day on the evening news).
2. Here’s the heart of the majority’s argument for why the First Amendment at least presumptively protects audiorecording, though subject to possible content-neutral restrictions that are narrowly tailored to an important government interest (perhaps only if they leave open adequate alternative channels):
The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists. By way of a simple analogy, banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.
Texas Penal Code § 21.15(b)(1) makes it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.” (A separate provision applies to photographing people in bathrooms or private dressing rooms.) In Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011), a Texas appellate court upheld the statute reasoning that “[p]hotography” — apparently including the taking of photographs — “is a form of speech normally protected by the First Amendment,” but
The State argues that the statute is not a regulation of speech at all, but instead is a regulation of the photographer’s or videographer’s intent. Discussing a similar First-Amendment issue, the Court of Criminal Appeals concluded that a telephone-harassment statute does not implicate the free speech guarantee — even though the conduct may include spoken words — where the statute focuses on the actor’s intent to inflict emotional distress and not to legitimately communicate ideas, opinions or information. Scott, 322 S.W.3d at 669–70. In much the same way, Texas Penal Code section 21.15(b) regulates a person’s intent in creating a visual record and not the contents of the record itself. We thus conclude that the statute is not a regulation of speech and does not violate the First Amendment.
Today, the Texas Court of Criminal Appeals refused to review the case (though it did withdraw the lower court’s attempt to revise the opinion, because those revisions were seen as untimely). Two judges would have taken the case, and one wrote a dissent from the denial of review, arguing:
This statute is virtually unbounded in its potential application. The photographing of anyone, anywhere, and under any circumstances can be an offense so long as the photograph was taken without consent and the actor harbored the requisite sexual mental state. Photography has been recognized as a form of expression protected by the First Amendment. While conceding that, the court of appeals nevertheless concluded that the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.”
But that conclusion does not necessarily exempt the statute from the First Amendment’s protections. The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of “freedom of thought,” including the freedom to think sexual thoughts. It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment. There are limits to the freedom of thought protected by the First Amendment: the First Amendment does not, for example, protect the right to privately possess child pornography. But in the statute before us, the person photographed could be a fully-clothed adult walking down a public street. The breadth of this statute is breathtaking, and the type of intent that it regulates is not inherently exempt from First Amendment protection.
That sounds right to me. For some thoughts about the dangers of purpose tests in First Amendment law, see pp. 271-284 of this article.
As I’ve said before, the Supreme Court has never decided whether K-12 schools may remove books from school libraries based on their viewpoints, or may filter out Web sites based on their viewpoints. The Court’s cases dealing with this question, Board of Ed. v. Pico and U.S. v. American Library Ass’n were badly splintered and provided basically no majority on the subject.
Pico, for instance, split 4-4 on the book removal issue, with the deciding vote (Justice White) expressing no opinion and sending the case down for more factfinding. (“The plurality seems compelled to go further and issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case.”) Likewise, ALA yielded no useful conclusion.
This makes yesterday’s Parents, Families & Friends of Lesbians & Gays, Inc. (PFLAG) v. Camdenton R-III School Dist. (C.D. Mo. Jan. 15, 2012) especially interesting: The court issued a preliminary injunction against a school district’s use of a filter that apparently generally filtered out pro-homosexuality sites — including ones that weren’t sexually explicited — but not anti-homosexuality sites. (“URL Blacklist systematically allows access to websites expressing a negative viewpoint toward LGBT individuals by categorizing them as ‘religion’, but filters out positive viewpoints toward LGBT issues by categorizing them as ‘sexuality’.”) The court held that government’s continued use of this filter, especially given the availability of other filters that did better both at blocking outright porn and at not blocking commentary on homosexualiy, was likely viewpoint discriminatory and therefore unconstitutional, which led it to issue a preliminary injunction. The standard for issuing such an injunction was (in part) that plaintiffs showed “a ‘fair chance’ that [their claim] will succeed on the merits”; but the court’s reasoning suggests that the court is even more persuaded on the merits than that.
This might prove to be the correct result, but the court’s reasoning strikes me as conclusory. Here, as best I can tell, is the heart of the court’s analysis:
Camdenton’s internet access system in its library is neither a traditional nor a designated public forum. United States v. Am. Library Ass’n (“ALA”), 539 U.S. 194, 205 (2003) (plurality opinion) (internal quotes omitted). It is a nonpublic for[um]. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and viewpoint neutral.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 806 (1985). But “the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.” Id.
Yet the statement that the system “is a nonpublic forum” is unsupported. School-provided Internet access indeed isn’t a traditional or designated public forum, but that just means that it’s either a nonpublic forum or not a forum at all. This last category, described in Arkansas Educ. Television Comm’n v. Forbes, involves situations where the government chooses to use its property to present speech that it likes and not speech that it dislikes. A government-run public television station, for instance, may air anti-racism programs but not pro-racism programs without violating the First Amendment; a school-provided bulletin board can display messages the school favors but not ones the school opposes; the government may accept for park display monuments that celebrate some things but not others.
Now the scope of this not-a-forum-at-all doctrine is not clear, and it might be that when it comes to government provision of access to a vast range of others’ material, in a situation where few people would see the government as endorsing all that material, the “nonpublic forum” category — with its prohibition on viewpoint discrimination — is more fitting than a “not a forum at all” category. But that conclusion has to be supported; as best I can tell, the district court instead just asserts it.
The district court does cite to Pratt v. Indep. School. Dist. No. 831 (8th Cir. 1982), which held unconstitutional the exclusion of material even from a school curriculum — given this, exclusion of material from library access would be even more clearly unconstitutional. But Pratt (which strikes me as very badly wrong) seems to me not to survive Hazelwood School Dist. v. Kuhlmeier (1988), which held that the government had very broad control over school curriculum. That control (controversially, though I think correctly) was held to include control over a student newspaper produced as part of a journalism class. Even more clearly, it would include control over what movies are shown as part of the school curriculum, the issue in Pratt. So while Hazelwood doesn’t dispose of the library filtering question, since it’s not clear whether it should be treated as a “curriculum” matter, Hazelwood does mean that Pratt is no longer a viable precedent.
Finally, one twist: According to the court in PFLAG, the school denied that it was engaged in viewpoint discrimination, and thus didn’t argue that the viewpoint discrimination was justifiable. “Camdenton has repeatedly said that its goal is not to protect its students from websites expressing a positive view toward LGBT individuals, or that such websites interfere with the requirements of appropriate discipline. Rather, Camdenton has argued that its internet-filter system does not discriminate based on viewpoint.” So perhaps the case could be decided just on that ground — but the court’s reasoning, as I understand it, goes further and says that all viewpoint discrimination in library filtering is presumptively unconstitutional, whether or not it is a deliberate and substantively defended decision on the school’s part. The case thus strikes me as an interesting and important decision, though vulnerable on the grounds I mentioned.
My article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011), available in its full PDF form here, has just been published; here is the Introduction:
“[T]he freedom ... of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.
Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.
But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom ... of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.
Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.
Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?
The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.
Parts I, II, and III set forth the evidence on this subject from the Framing era and the surrounding decades. Part I discusses, among other things, early reference works and state constitutions that described the freedom of the press as a right of “every freeman,” “every man,” or “every citizen.” This right was generally seen as the right to publish using mass technology, as opposed to the freedom of speech, which was seen at the time as focusing more on in-person speech. Part II discusses the Framing-era understanding that the freedom of the press extended to authors of books and pamphlets — authors who were generally not members of the press-as-industry, though they did use the press as technology. Part III goes on to discuss fifteen cases from 1784 to 1840 that treated the freedom of the press as extending equally to all people who used press technology, and not just to members of the press-as-industry. To my knowledge, these cases have not been discussed before in this context. Each of the sources standing alone may not be dispositive. But put together, they point powerfully toward the press-as-technology reading, under which all users of mass communications technologies have the same freedom of the press.
Part IV turns to how the “freedom ... of the press” was understood around 1868, when the Fourteenth Amendment was ratified. Much recent scholarship has suggested that originalist analyses of Bill of Rights provisions applied to the states via the Fourteenth Amendment should consider the original understanding as of 1868 in addition to that of 1791. And it turns out that around 1868, it was even clearer that the “freedom ... of the press” secured a right to use the press-astechnology, with no special protection for the press-as-industry. Part V offers evidence that this remained true from 1880 to 1930.
Part VI then looks at how the Supreme Court has understood “freedom ... of the press” since 1931, the first year that the Court struck down government action on First Amendment grounds. Throughout that time, the press-as-technology view has continued to be dominant. Many Supreme Court cases have officially endorsed this view. No Supreme Court case has rejected this view, though some cases have suggested the question remains open.
Part VII turns to how the “freedom ... of the press” has been understood by lower courts since 1931, and concludes that the press-astechnology view has been dominant there as well. The first lower court decisions I could find adopting the press-as-industry view did not appear until the 1970s. Even since then, only a handful of cases have adopted such a view, and many more have rejected it. (The press-asindustry cases that this Part identifies could also be helpful as test cases for any future work that discusses the policy advantages and disadvantages of the press-as-industry model.)
None of the evidence I describe specifically deals with corporations, the particular speakers involved in Citizens United, but it does show that the institutional media has historically been seen as the equal of other people and organizations for purposes of the “freedom ... of the press.” The constitutional protections offered to the institutional media have long been understood — in the early republic, around 1868, from 1868 to 1970, and in the great bulk of cases since 1970 as well — as being no greater than those offered to others.
Finally, the Conclusion briefly discusses what effect this analysis should have on the Court’s interpretation of the Free Press Clause. Of course, text, original meaning, tradition, and precedent have never been the Supreme Court’s sole guides. But any calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.
If you’re interested in the subject, whether as to campaign speech restrictions, libel law, the newgatherer’s privilege, or other topics, have a look at the article.
Friday’s Glik v. Cunniffe (1st Cir.), held that the First Amendment protects a right to openly videorecord and audiorecord police officers in public:
It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’”
The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abusesbut also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that “many governmental processes operate best under public scrutiny”).
In line with these principles, [our circuit, other circuits, and various district courts] have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties....
It is of no significance that the present case, unlike Iacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film.
Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. We have no occasion to explore those limitations here, however. On the facts alleged in the complaint, Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are “sharply circumscribed.” Moreover, ... the complaint indicates that Glik “filmed [the officers] from a comfortable remove” and “neither spoke to nor molested them in any way” (except in directly responding to the officers when they addressed him). Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.
The decision is correct, I think: Just as the right to speak can be unconstitutionally burdened by restrictions on spending money to speak, or associating in order to speak, it can also be unconstitutionally burdened by restrictions on the gathering of information that is needed to credibly speak.
And the decision is also important. It’s just the latest in a line of circuit court cases, but it’s likely to get a lot of publicity, encourage police departments to respect the public’s rights to openly record police officers in public, and encourage lawyers to challenge violations of these rights. This is especially so because the court held that the right was clearly established, so that the officers won’t have qualified immunity. This means that if the plaintiff proves to the jury that his account of the facts is right, he can recover damages and attorney’s fees.
Note, though, that the decision is quite limited in its scope. It doesn’t, for instance, deal with whether state laws that bar surreptitious recordings — including of police officers in public — are constitutional (the argument would be that they are permissible “manner restrictions”). For an example of such a law being applied to punish a citizen, see this post, which discusses the 2001 Commonwealth v. Hyde decision in Massachusetts.
The First Circuit decision also doesn’t deal with whether the First Amendment right extends to the recording not just of government officials but of others (whether employees of a business or a nonprofit, or private citizens acting outside of any scope of employment). It doesn’t deal with whether state laws that bar surreptitious recordings of supposedly “private conversations” are constitutional. And it doesn’t discuss the permissible scope of restrictions on videotaping on government property (outside traditional public forums such as streets, sidewalks, and parks).
The logic of the opinion is broad enough to strengthen the hand of people who challenge some of these restrictions, and may ultimately lead to some of these restrictions being struck down. But which ones will indeed ultimately be struck down, and which will be upheld, is not clear.
I just ran across a procedural decision in this litigation — Blackden v. New Hampshire State Police (D.N.H. July 8, 2011) — and thought that our readers who follow such issues might want to know about it. The decision itself is focused on whether a federal court may intervene at this point, given the ongoing state proceedings; but here’s the underlying fact pattern:
As alleged in the first amended complaint, doc. no. 16, Blackden is a freelance reporter and photographer for various news agencies, including plaintiff Belsito Communications. On August 25, 2010, Blackden heard a radio transmission calling the Penacook Rescue Squad to the scene of a serious traffic accident. Blackden went to the scene and donned a protective coat and a helmet marked “Photographer.” After taking photographs of the accident and rescue efforts, Blackden was approached by state trooper James Decker, who asked Blackden to identify himself and to produce some form of identification. Blackden complied with Decker’s request. Shortly after questioning him, Decker seized Blackden’s camera, which contained a digital photo card containing the photographic files Blackden had taken at the scene.
Public records, which this court has judicially noticed, disclose the events that followed seizure of Blackden’s camera. On August 26, 2010, warrants were issued authorizing a search of Blackden’s camera and digital card, and seizure of image files on the card. On November 19, 2010, a warrant was issued for Blackden’s arrest. Blackden was charged with obstructing government administration, impersonating medical/rescue personnel, and unauthorized use of red lights, all in violation of state law. The camera was returned to Blackden, but the digital card was retained pending resolution of Blackden’s state court trial. On May 12, 2011, Blackden was convicted in the state district court of impersonating medical/rescue personnel and unauthorized use of red lights. [Text moved: -EV] Blackden may appeal (or may have already appealed) his Class A misdemeanor conviction ” ‘to obtain a de novo jury trial in the superior court’ “, in which case, the district court conviction is deemed vacated.
Before his conviction, Blackden and Belsito filed this § 1983 suit against Colonel Quinn, in his official capacity, and Trooper Decker, individually. Plaintiffs allege that Decker’s seizure of the camera and digital photo card was without probable cause, in violation of Blackden’s Fourth Amendment right to be free from unreasonable search and seizure. Plaintiffs also allege that retention of the card deprived them of their First Amendment rights to publish the images contained on the digital card. They seek monetary relief against Decker and prospective injunctive relief against Decker and Quinn....
Plaintiffs’ claims against Decker turn upon the alleged absence of probable cause for the seizure of Blackden’s camera and digital photo card. See Am. Cmpt., doc. no. 16, pgs. 6-7 (“seizure and retention of [Blackden's] property without probable cause” violates the Fourth Amendment, and, further, has “prevented [plaintiffs] from publishing and or broadcasting” the photographs in violation of their “First Amendment rights to freedom of speech and the press .”)....
Belsito’s First Amendment claims, as pled, necessarily depend upon its assertion that the seizure of Blackden’s digital card was unlawful. Accordingly, both Blackden’s and Belsito’s claims must be stayed until that issue is resolved.
In today’s Too Much Media, LLC v. Hale, the New Jersey Supreme Court considered what sorts of online speakers are covered by New Jersey’s Shield Law, which gives people connected with the “news media” an essentially absolute privilege not to disclose sources and other information that they’ve gathered. (This privilege is considerably stronger than the one provided by many state laws, and that the one that some federal courts have read the First Amendment as securing.) The court acknowledged that defendant had First Amendment rights to speak — the same First Amendment rights that members of the mainstream media possesses. The question is what additional statutory rights the defendant had, and that was a question of statutory interpretation, not constitutional law.
Shellee Hale, who said she was investigating alleged crime in the pornography industry, posted various allegations on an online message board, which was a discussion forum open to all commenters. Too Much Media sued Hale, claiming her statements libeled her, and it demanded information about the sources on which she based her statements.
Under New Jersey’s Shield Law, any “person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding” may refuse to disclose his sources and the other information that he’s gathered. The statute defines “news media” as “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” “News” is defined as “any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.” And “in the course of pursuing his professional activities” is defined as “any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter ....”
The New Jersey Supreme Court held that Hale — as a poster of comments to an open message board — didn’t qualify as a “person engaged on, engaged in, connected with, or employed by news media” under the statutory definition, though it concluded that many bloggers might well so qualify:
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