The Volokh Conspiracy

So reports The Tullahoma News (Tennessee), in an article that has been heavily linked to and quoted in recent days:

A special meeting has been scheduled [for June 4] for the stated purpose of increasing awareness and understanding that American Muslims are not the terrorists some have made them out to be in social media and other circles....

Special speakers for the event will be Bill Killian, U.S. attorney for the Eastern District of Tennessee [i.e., the chief federal prosecutor for that district -EV], and Kenneth Moore, special agent in charge of the FBI’s Knoxville Division....

Killian and Moore will provide input on how civil rights can be violated by those who post inflammatory documents targeted at Muslims on social media.

“This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion,” Killian told The News Monday. “This is also to inform the public what federal laws are in effect and what the consequences are.” ...

Killian referred to a Facebook posting made by Coffee County Commissioner Barry West that showed a picture of a man pointing a double-barreled shotgun at a camera lens with the caption saying, “How to Wink at a Muslim.”

Killian said he and Moore had discussed the issue.

“If a Muslim had posted ‘How to Wink at a Christian,’ could you imagine what would have happened?” he said. “We need to educate people about Muslims and their civil rights, and as long as we’re here, they’re going to be protected.”

Killian said Internet postings that violate civil rights are subject to federal jurisdiction.

“That’s what everybody needs to understand,” he said.

Killian said slide show presentations will be made.

As a Politico post points out,

While threats directed at individuals or small groups can lead to punishment, First Amendment experts expressed doubt that the government has any power to stop offensive material about Islam from circulating.

“He’s just wrong,” said Floyd Abrams, one of the country’s most respected First Amendment attorneys. “The government may, indeed, play a useful and entirely constitutional role in urging people not to engage in speech that amounts to religious discrimination. But it may not, under the First Amendment, prevent or punish speech even if it may be viewed as hostile to a religion.”

“And what it most clearly may not do is to stifle political or social debate, however rambunctious or offensive some may think it is,” Abrams said.

My one reservation is that it’s hard from the newspaper article to tell precisely what U.S. Attorney Killian said; misparaphrases sometimes happen, even more commonly than misquotes. If his claims about the civil rights laws was limited to specific true threats of violence against particular people or particular institutions, such speech may indeed be punishable under the “true threats” exception to the First Amendment. But indeed “inflammatory documents targeted at Muslims” generally are constitutionally protected, so if Mr. Killian indeed used those words or ones that are fairly paraphrased as those words (or suggested that the “How to Wink” posting was actually illegal rather than just wrong), then Floyd Abrams’ criticism is entirely apt. If anyone has any more details about what Mr. Killian told the reporter, or has said in other venues, or will say Tuesday, I would love to hear it. (I found this 2012 speech of Mr. Killian’s about civil rights and Muslims, but it doesn’t discuss this particular issue.)

Hurriyet Daily News reported last week:

An Istanbul court has sentenced Turkish-Armenian writer Sevan Nişanyan to 58 weeks in prison for an alleged insult to the Prophet Muhammad in a blog post.

The prosecutor had been seeking one and a half years of jail time for Nişanyan on charges of “insulting the religious beliefs held by a section of the society.” ...

Nişanyan was convicted of writing, in reference the controversy over the “Innocence of Muslims” video:

Making fun of an Arab leader who claimed he contacted Allah hundreds of years ago and received political, financial and sexual benefits is not hate speech. It is an almost kindergarten-level test of what is called freedom of expression.

Here, according to a site that appears to be Nişanyan’s own, is a statement that Nişanyan made to the court during the trial:

This person named Muhammed has claimed to have established communication with the Maker of the Universe — God forgive my sins — and to have received a book from Her. This, in my conscience and belief, is blasphemy of the worst kind. Yet I do not bring a legal complaint against this person. For everyone has the right to believe in whatever silliness they wish and to take for truth whatever superstition they choose, so long as they do not violate the rights of others.

In consequence of his claim to have established contact with Deity, this Muhammed, who was a lowly merchant, acquired political dominion over all Arabia and gained the financial means to raise 30-thousand-strong armies. Again as a result of his claim to “Prophethood”, we learn from canonical Islamic sources that he acquired a total of at least eleven wives and two unwed concubines. In other words, it is an incontrovertible historical fact that this person made political, economic and sexual profit from his alleged contact with Deity. Now, profiting is not a crime, nor is it always a morally reprehensible act. To state that this person profited from claiming “prophethood” does not constitute an imputation of crime or even of immorality. It is merely a statement of historic fact.

Nevertheless I did not make that statement of fact in my article, considering it might be distasteful to some people. I carefully avoided any statement of the type “Muhammed was this and that”. I simply argued that, IF someone wished to make such a statement of fact it would be their most natural right to do so, and that this right should be protected by public hand against violation by hostile individuals or groups.

I believe that only an ignorant person devoid of the most basic notion of law would argue the contrary.

Telling the historical or legal truth may sometimes be hurtful to the sensitivities, or prejudices, of some people. This is regrettable. Yet I don’t think it would be possible, in a civilized legal system, to derive a legal injury or right from this fact. Nor do I think that there is any public benefit in tying the right to tell the facts to the precondition to heed the fine sensibilities of this or that group.

Israel Hayom reports:

Arab MK Ibrahim Sarsur (Ra’am-Ta’al) has reintroduced [together with two other legislators from Arab parties] legislation that would lower the threshold for what is considered a racist offense and would ban the publication of materials that disparage the Prophet Muhammad [as well as Moses, Jesus, and various religious scriptures] through a “cartoon, defamation and insult.”

Israeli law apparently already bans “crudely offensive” actions towards a religion or religionists; the bill would remove “crudely” and give specific examples of what is covered, “such as the drawing of the Prophet Muhammad.” Sarsur is quoted as saying, in the bill’s preamble:

The publication of a cartoon that depicts the Prophet Muhammad is highly insulting towards Muslim believers as Islamic law forbids any attempt to draw the prophet or try to portray the image of the Prophet Muhammad, peace be upon him ....

There has recently been a noticeable increase in the attempts to hurt members of various faiths, whether directly or indirectly, including Muslims [including through slurs and "acts that cast a negative light on Islamic symbols."]

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

Now I’m no fan of the Attorney General, and have been critical of the Administration’s decision to target journalists in its leak investigations, but if this is all there is, I don’t see it.  Did Holder suggest he had less involvement in the Rosen case than he, in fact, had.  Sure.  Did he say anything that was untrue or that would justify charging him with lying under oath?  No.  Based on what I’ve seen reported, it’s not even close.

The core of the claim is that the Attorney General’s testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”  But there’s no contradiction between Holder’s statement and his reported actions, let alone a basis for accusing him of lying under oath.   Holder signed a document stating that the government believed there was probable cause to believe Rosen had committed a crime, but there’s no evidence that Holder (or anyone else) in the Administration actually considered taking the next step of indicting (let alone prosecuting) Rosen for his journalistic endeavors.  Prosecutors don’t prosecute everyone they believe may have violated the law; they don’t even consider prosecuting everyone they investigate.  Some “unindicted co-conspirators” are never at risk of prosecution.

If, as Holder testified, it would not be “wise policy” to prosecute journalists for reporting on leaked information, this would not preclude the Department from investigating or conducting surveillance on journalists so as to prosecute government leakers.  Indeed, asserting the existence of probable cause in order to obtain information to facilitate the prosecution of a government leaker is wholly consistent with a policy of aggressively pursuing government leakers while not indicting or prosecuting journalists even if one believes their solicitation of classified material is against the law.  So whether or not one agrees with the Justice Department’s current policies (and I do not), I see no basis for accusing the Attorney General of lying to Congress on this matter.

UPDATE: Bill Otis offers a different view, concluding Holder “is in big trouble.”  I remain skeptical because perjury is quite difficult to prove. We can all agree that Holder would have been more forthright had he acknowledged that he had approved seeking a warrant to seize Rosen’s records, etc., but saying that Holder gave an incomplete or misleading answer is quite not the same thing as saying that he lied under oath.

The Scott v. Saint John’s Church in the Wilderness case (in which I’m representing petitioners pro bono) has been in the news a bit, including both in the New York Times and in the conservative media, and I’ve seen quite a few comments complaining about how “liberals seek to ban photos of aborted children” or how “liberals” are hypocrites on free speech here or how “liberals” are the opponents of plaintiffs’ free speech rights.

But this strikes me as a vast oversimplification. For instance, when the Colorado Supreme Court refused to consider the speakers’ petition for review, two Justices — the conservative Allison Eid and the liberal Michael Bender — voted to hear the case. To answer one of the commenters at National Review Online, who asked “Where are you liberal first amenders anyway?,” Chief Justice Bender was there with Justice Eid. I’m not sure quite how the other Justices are best categorized, but at least one of the conservatives (Justice Coats) voted not to hear the case; the third Justice who I hear described as conservative, Justice Rice, did not participate. [UPDATE:] And the decisions from other courts stating that the First Amendment protected the public display of aborted fetuses, and that the desire to shield children from the images didn’t justify restricting the images, came mostly from liberal judges — Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept. (9th Cir. 2008), was written by arch-liberal Judge Pregerson and joined by liberal Judges Fletcher and Berzon, and Center for Bio-Ethical Reform v. City of Springboro (6th Cir. 2007), was written by Clinton appointee Judge Clay and joined by Clinton appointee Judge Moore and Reagan appointee Judge Bell (a district court judge sitting by designation).

And as to “liberal first amenders” more broadly, many of them signed on to an amicus brief of First Amendment scholars supporting our petition. The list included leading First Amendment lawyer Floyd Abrams and Profs. Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein; all or nearly all of them, I think, are very much “liberal first amenders.” Yale Prof. Jack Balkin, of course, is the founder of Balkinization, a very liberal law professor blog. Chicago Prof. Geoffrey Stone, who signed the brief as cocounsel as well as a signatory, is another highly prominent liberal law professor (as his Huffington Post columns show). It’s hard to be more of a “liberal first amender” than Georgetown Prof. David Cole. New York Law School Prof. Nadine Strossen is the past president of the ACLU; NYU Prof. Norman Dorsen was president of the ACLU before her. Harvard Prof. Alan Dershowitz is Alan Dershowitz. And there are many other illustrious and liberal names on the list.

To be sure, the debate about abortion-related speech on the Court has sometimes split in some measure along liberal/conservative lines. In Hill v. Colorado (2000), the speech restriction was upheld by the liberal Justices and Chief Justice Rehnquist and Justice O’Connor, with conservative Justices Scalia, Kennedy, and Thomas dissenting; the lineup was similar in Madsen v. Women’s Health Center (1994). In Schenck v. Pro-Choice Network (1997), there was the same split as to one free speech claim, though the other free speech claim was upheld by all the liberals except Justice Breyer plus all the conservatives. Finally, Frisby v. Schultz (1988), dealt with a general ordinance banning residential picketing, but involved picketing of an abortion provider, at a time when abortion providers were disproportionately targeted by residential picketing. And there the liberals were more in favor of protecting the speech than the conservatives were: The votes for speech protection were the liberal Justices Brennan, Marshall, and (in large measure) Stevens, with the votes against speech protection coming from the conservative Justices (Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy) plus the liberal Justice Blackmun.

But all those cases involved restrictions that were at least argued to be content-neutral — here, the restriction is an overtly content-based restriction, of the sort that both liberals and conservatives on the Court (and off it) have generally viewed extremely skeptically. And, as I mentioned, we’re fortunate to have an illustrious array of liberal professors who were willing to go on the record in support of the Court’s reviewing and overturning the decision below (as well as a liberal Colorado Chief Justice who wanted his own court to review the case). There are plenty of liberals who are willing to support free speech here, and there are some conservatives (though not, I hope, on the U.S. Supreme Court) who were willing to see it restricted. Generalizations about the supposed liberal position on this case are, I think, inaccurate.

From the Mirror (UK):

A 22-year-old man has been charged on suspicion of making malicious comments on Facebook following the [brutal public murder by jihadists -EV] of British soldier Lee Rigby.

Benjamin Flatters, of Lincoln, was arrested last night [and charged] after complaints were made to Lincolnshire Police about comments made on Facebook, which were allegedly of a racist or anti-religious nature....

A second man was visited by officers and warned about his activity on social media, the spokesman added....

The charge comes after two men were earlier released on bail following their arrest for making alleged offensive comments on Twitter about the murder....

A 23-year-old and a 22-year-old, both from Bristol, were held under the Public Order Act on suspicion of inciting racial or religious hatred.

Detective Inspector Ed Yaxley, of Avon and Somerset Police, said: “On Wednesday evening, we were contacted by people concerned about comments made on social media accounts.

“We began inquiries into the comments and at around 3.20am two men, aged 23 and 22, were detained at two addresses in Bristol.

“The men were arrested under the Public Order Act on suspicion of inciting racial or religious hatred. Our inquiries into these comments continue.

“These comments were directed against a section of our community. Comments such as these are completely unacceptable and only cause more harm to our community in Bristol.

“People should stop and think about what they say on social media before making statements as the consequences could be serious.”

I couldn’t find the texts of the allegedly criminal tweets; please let me know if you know what they were. But whatever they were, I suspect the warnings from police officers — coupled with coverage that does not explain what the comments were — would deter people from engaging in a good deal of speech that’s critical of extremist Islam, critical of Islam generally, or critical of allowing further immigration from Muslim countries (though note that in this instance the murderers were apparently Muslim converts from Nigerian Christian families).

The bill is HB8, though there’s a Senate amendment; apparently, the Legislature plans to enact the bill as amended. The bill bars the government from releasing information about who has applied for or gotten a concealed carry permit, and the Legislature certainly can impose such restrictions on the government itself. But then it also criminalizes speech by everyone else (I merge the House Bill and the adopted Senate amendment):

Absent a valid court order requiring the release of information or unless a recipient of a concealed handgun permit is charged with a felony offense involving the use of a handgun, it shall be [a misdemeanor] ... to release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit issued pursuant to this Section.

So blogging that you happen to know that a gun control advocate actually has a concealed carry permit himself would be a crime. Or say that you know someone has a concealed carry permit, and that person is sued for supposedly making death threats, or is criminally prosecuted for a felony offense involving a shotgun, or otherwise seems dangerous and unstable — mentioning the permit in publicly discussing the situation would be a crime. Mentioning applicants’ names in giving examples of cases where you think a concealed handgun permit was wrongly issued, or wrongly denied, would be a crime, too. So would talking about a person’s concealed carry permit in a biography of the person, or in a newspaper or magazine story that is trying to give a sense of the kind of person he is.

This is a clear First Amendment violation. Florida Star v. B.J.F. (1989) struck down a law banning the publication of the names of rape victims, once the information was released by the police (even when it was released in violation of department policy). This statute is thus unconstitutionally overbroad, because it has no exception for these kinds of erroneous-release situations. But even if the statute were limited to exclude information gleaned from public records, it would still be unconstitutional: It would be a content-based restriction on speech. It would apply to speech about crime, lawsuits, threats to public safety, and other matters of public concern.

And while in theory even such content-based speech restrictions might be constitutional if they are “narrowly tailored” to a “compelling government interest,” this test has rightly been extremely hard to satisfy (consider Florida Star itself). Indeed, one reason our free speech protections are so strong is that courts have been extremely hesitant to uphold speech restrictions under this test. They are thus very likely to strike down the statute — and if they do uphold it, the precedent would risk undermining free speech protection more broadly. The Second Amendment (or, to be precise, the desire to keep confidential people’s exercise of their gun rights) shouldn’t be a basis for undermining the First Amendment.

Thanks to the Media Law Resource Center’s Media Law Daily for the pointer. UPDATE: I initially wrote that the Senate plans to pass the bill as amended; I now realize that the Senate did so pass the bill, but the expectation is that the House will concur in the amendments. I revised the opening sentence accordingly.

Lenta.ru so reports. The bill would criminalize “actions in public, demonstrating clear disrespect to society and committed with the intent to insult the religious feelings of believers,” with the maximum punishment being one year in prison, or three years if the actions are committed in a place of worship. The final vote on the law is expected by the end of the week. Thanks to my father Vladimir Volokh for the pointer.

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).

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,

1. Federal law (18 U.S.C. § 793) does this (among other things) for secret defense information.
2. Federal law does it for confidential income tax information, and many other matters.
3. 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).
4. Nondisclosure agreements do the same for other kinds.
5. Professional regulations and related statutes do this for attorney-client, psychotherapist-patient, and doctor-patient confidences.
6. 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.

Here’s a newspaper article containing an allegedly defamatory statement by Gov. Sundquist:

[Some death row inmates] accuse the governor of being “mean spirited” because he took away their satellite dish.

Three inmates and four citizens have filed a federal lawsuit against the governor and correction officials, claiming the satellite dish was paid for by donors and that the governor had no right to remove it.

“That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” Sundquist said. “If they think I’m mean-spirited, I would question the origin of the statement. How can someone who’s committed the most grievous crimes imaginable — who is slated to be executed — expect to have television access that most people in Tennessee don’t have.”

“A satellite dish with all the Playboy channels may be dangerous to their health.”

The dish carried HBO and Cinemax to the prisons at Nashville’s Riverbend Maximum Security Institution. The suit was filed by convicted murders Terry King, Rocky Lee Coker and Michael Sample....

Here’s what the Tennessee Commission said in rejecting Coker’s defamation lawsuit, see Coker v. Sundquist (Tenn. Ct. App. 1998) (nonprecedential) (patragraph breaks added):

The main reason why this Commission finds this to be a claim on which relief cannot be granted is that the newspaper article in question is not libelous or injurious at all. Any body who reads that newspaper article gets the message: men who have been sentenced to death in a Tennessee Court deserve to be deprived of entertainment, and when such men use language like “mean spirited” and go to Court to get their entertainment back then they are being ridiculous. Anybody who reads that newspaper article recognizes that the quotation, “That was the guy who committed 14 murders and two rapes on death row who said I’m mean spirited,” was an exaggeration, just a piece of mockery; anybody who reads that newspaper sees that this statement is not statistically precise.

All human-beings — not just holders of high offices and newspaperwomen — use exaggeration sometimes. People may say that men sentenced to death by Tennessee juries have “committed the most grievous crimes imaginable,” while they know that only people like Mao Tse-Tung and Pol Pot really have “committed the most grievous crimes imaginable.” We all talk like that sometimes, and talking like that is not slander or libel. And there is a very good reason why it is not slander or libel: because nobody who hears it takes it with nit-picking precision.

Take the case of the mother who says to her child, “You’re just the worst little boy I’ve ever seen!” Nobody would say to her seriously, “You’re a liar! You’ve seen two little boys this morning who are worse than he is!” This claimant is arguing that mockery is libel, and it is not....

Apropos the recent stories about the IRS’s quizzing conservative groups about their intentions and their speech, and delaying approval of those groups’ tax-exempt status, here are two items from a few years ago:

1. In 2011, the IRS quizzed Christian Voices for Life about whether they “[do] education on both sides of the issues” and whether they “attempt to talk to [people] trying to enter a medical clinic, or any other building facility.”

But though groups that engage in advocacy related to political campaigns, or that engage in substantial advocacy related to legislation, can’t have 26 U.S.C. § 501(c)(3) status, there is no such limitation for groups that try to talk to people entering medical clinics. Moreover, Big Mama Rag, Inc. v. United States (D.C. Cir. 1980) pretty strongly suggests that § 501(c)(3) status can’t be limited to groups that are evenhanded in their speech (“[w]e can conceive of no value-free measurement of the extent to which material is doctrinaire”), and indeed many groups that engage in one-sided advocacy (PETA, the ACLU Foundation, and more) have § 501(c)(3) status. After the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

2. In 2009, the IRS allegedly demanded that the Coalition for Life of Iowa promise, as a condition of getting tax-exempt status, that it wouldn’t “picket” or “protest” outside Planned Parenthood or similar groups, or organize others to do so. It also demanded that the Coalition “explain how all of your activities, including the prayer meetings held outside of Planned Parenthood are considered educational as defined under 501(c)(3),” “explain in detail the activities at these prayer meetings,” and “explain in detail the signs that are being held up outside of Planned Parenthood and explain how they are considered educational.”

If it is indeed standard practice for the IRS to demand that all groups that engage in protesting and demonstrating — liberal, conservative, or otherwise –”explain in detail” all their past speech qualifies as “educational,” I’d like to hear that; § 501(c)(3) does limit the exemption to (among other things) “charitable” and “educational” groups, and if the IRS is defining “educational” narrowly and applying the narrow definition evenhandedly, then that may explain why it was applied to the Coalition for Life of Iowa. But my suspicion is that most groups aren’t required to provide such detail about their speech. Again, after the group got a lawyer to write a letter to the IRS about this, the IRS approved the exemption request.

Thanks to Paul Milligan for the pointer. I should note that the groups I mention were represented by the Thomas More Society, with which I’m working on my pro bono Scott v. Saint John’s Church in the Wilderness petition; but they didn’t approach me about blogging on this subject.

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.

Today’s New York Times has an article by Adam Liptak about Scott v. Saint John’s Church in the Wilderness, the case in which I filed a cert petition recently. In that case, as many readers may recall, the Colorado Court of Appeals upheld an injunction that bars my clients from (among other things) displaying “gruesome images” of aborted fetuses outside a church. The court acknowledged that this was a content-based speech restriction, but said that the injunction passed the “strict scrutiny” required for such restrictions, because it was supposedly narrowly tailored to a compelling government interest in shielding children from such speech. Our petition argues that the Supreme Court should consider the case, because lower courts disagree on whether such content-based restrictions are constitutional.

The briefing is now done — just yesterday I filed the reply brief — and we expect the Court to consider the case in late May or early June. [UPDATE: Today the clerk's office noted in the docket that the petition would be first considered at the Court's conference on May 30.] Here is where you can get the material, if you’re interested in the case:

1. The decision below.
2. The petition for certiorari.
3. The amicus brief of free speech scholars (Profs. Floyd Abrams, Amy Adler, Jack Balkin, Vince Blasi, David Cole, Ronald Collins, Alan Dershowitz, Norman Dorsen, Daniel Farber, Kent Greenfield, Seth Kreimer, Sanford Levinson, Robert O’Neil, Martin Redish, Suzanna Sherry, Geoffrey Stone, Nadine Strossen, Jonathan Varat, and James Weinstein).
4. The amicus brief of Religion Clauses scholars (Salam Al-Marayti and Profs. Michael Ariens, Thomas Berg, Zachary Calo, Bob Destro, Carl Esbeck, Marie Failinger, Edward Gaffney, Richard Garnett, Douglas Kmiec, Faisal Kutty, Michael Stokes Paulsen, Michael Perry, Richard Stith, and Lynn Wardle).
5. The amicus brief of historians of art and photography (Profs. Dora Apel, Stephen Eisenman, Renée C. Hoogland, Paul Jaskot, William J. Thomas Mitchell, Terence Smith, John Tagg, and Rebecca Zorach).
6. The amicus brief of the Center for Bio-Ethical Reform.
7. Respondents’ brief in opposition.
8. Our reply brief.

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.