Supreme Court
JURIST: Supreme Court rules for police officers in First Amendment retaliation claim
By Leanne Winkels
The US Supreme Court ruled Tuesday in Nieves v. Bartlett…
Chief Justice John Roberts wrote the majority opinion…
The court concluded that: “The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” On the specific facts of the case presented, the court held that “[b]ecause there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law.”
Justice Clarence Thomas wrote separately, concurring in part and concurring in judgement. Thomas disagreed with the portion of the majority opinion where the court makes the qualification that: “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” …
Justice Neil Gorsuch also wrote separately, concurring in part and dissenting in part. Gorsuch argued that: [The Court has] no legitimate basis for engrafting a no probable-cause requirement onto a First Amendment retaliatory arrest claim.” Gorsuch concluded that absence of probable cause is not an “absolute requirement” of a retaliatory arrest claim, but that does not make probable cause irrelevant: “I would reserve decision on those questions until they are properly presented to this Court and we can address them with the benefit of full adversarial testing.”
Justice Ruth Bader Ginsburg wrote separately, concurring in the judgement and dissenting in part. Ginsburg stated that: “[i]n this case, I would reverse the Ninth Circuit’s judgment as to Trooper Weight.”
Finally, Justice Sonia Sotomayor dissented from the majority opinion:
The majority instead announces a different rule: that a showing of probable cause will defeat a §1983 First Amendment retaliatory arrest claim unless the person arrested happens to be able to show that “otherwise similarly situated individuals” whose speech differed were not arrested. … Because the correct approach would be simply to apply the well established, carefully calibrated standards that govern First Amendment retaliation claims in other contexts, I respectfully dissent.
The court reversed and remanded the case to the lower court.
First Amendment
Washington Post: Some federal prosecutors disagreed with decision to charge Assange under Espionage Act
By Devlin Barrett, Matt Zapotosky, and Rachel Weiner
Two prosecutors involved in the case against WikiLeaks founder Julian Assange argued against the Justice Department’s decision to accuse him of violating the Espionage Act because of fear that such charges posed serious risks for First Amendment protections and other concerns, according to people familiar with the matter…
The internal Justice Department debate over how, or whether, to prosecute Assange stretched back to the Obama administration, which ultimately decided that such charges were a bad idea but did not formally close the case.
The case was dormant when the Trump administration began, but in 2017, Attorney General Jeff Sessions, eager to demonstrate his zeal for pursuing anti-leak investigations, urged the U.S. Attorney for the Eastern District of Virginia to take a second look at prosecuting Assange.
In a sign of how seriously they took their task, one of the assistant U.S. attorneys asked to evaluate the case was James Trump, an aggressive veteran prosecutor with experience in intelligence leak matters.
James Trump was part of the team that won criminal convictions in 2015 against former CIA officer Jeffrey Sterling, who was charged with leaking classified information to journalist James Risen. Prosecutors in that case had taken the dramatic step of seeking to compel Risen to reveal his source in court. The prosecution team in that case wanted to jail Risen until he cooperated with investigators, but that plan was scuttled by then-Attorney General Eric H. Holder Jr., according to people familiar with the matter who, like others, spoke on the condition of anonymity to discuss internal deliberations.
When it came to Assange, James Trump was concerned about pursuing a prosecution that was so susceptible to First Amendment and other complicated legal and factual challenges, the people familiar with the matter said.
The Intercept: The Indictment of Julian Assange Under the Espionage Act Is a Threat to the Press and the American People
By James Risen
A true democracy does not allow its government to decide who is a journalist…
WikiLeaks would obtain materials from sources inside governments and other organizations and then disseminate them, either by publishing them itself or by sharing them with major news organizations. WikiLeaks served as an intermediary between sources and reporters.
Does that make Assange, its founder, a journalist? A debate over that question has raged ever since and has never been resolved.
Journalists don’t want the government to settle this question – and Americans shouldn’t either. If the government gets to decide what constitutes journalism, what’s to stop it from making similar rulings about any outlet whose coverage it doesn’t like?
The indictment says that Assange and WikiLeaks “repeatedly sought, obtained, and disseminated information that the United States classified due to the serious risk that unauthorized disclosure could harm the national security of the United States.”
That is almost a textbook definition of the job of a reporter covering national security at a major news organization. Take a look at the tips pages of most news outlets, and you’ll see a remarkable similarity between what journalists ask for and what WikiLeaks sought.
The indictment goes on to say that “WikiLeaks’s website explicitly solicited censored, otherwise restricted, and until September 2010, ‘classified’ materials.” Today, virtually every major news organization has a similar secure drop box where sources can provide information anonymously. WikiLeaks popularized that technique for soliciting anonymous leaks, but it is now common journalistic practice.
National Review: Assange, Greenwald, and Journalism
By Kevin D. Williamson
In re: the Julian Assange case, Glenn Greenwald makes an important point, that as a First Amendment question, it does not matter whether Assange is a journalist.
Press freedoms belong to everyone, not to a select, privileged group of citizens called “journalists.” Empowering prosecutors to decide who does or doesn’t deserve press protections would restrict “freedom of the press” to a small, cloistered priesthood of privileged citizens designated by the government as “journalists.” The First Amendment was written to avoid precisely that danger. …
If the First Amendment does not create a set of privileges for a caste known as “journalists,” then journalists can be prosecuted for violating the law…
The dissemination of classified documents is illegal in many circumstances. It is, under what seems to me the plain meaning of the law, precisely the felony of espionage in at least some cases. To decline to prosecute those crimes in the interest of enabling journalism is to create exactly the kind of professional caste privilege that Greenwald rightly warns against. We cannot simultaneously hold that the problem is “empowering prosecutors to decide who does or doesn’t deserve press protections” and then try to solve that problem by empowering prosecutors to decide who does or doesn’t deserve press protections…
The solution to bad laws is to repeal or reform the law, not to construct a supplementary social theory to support its selective application.
In keeping with Greenwald’s concerns, writing a journalism carveout into the statute would be a disastrous undertaking, because it would amount to licensing journalists, which would radically reconfigure the First Amendment and our understanding of free speech in an unacceptable way. That is one significant problem with “campaign finance” laws that subject political speech to legislative discipline and then pretend to make an exemption for news media.
Washington Post: The Assange case does not herald a new assault on the press
By Randall D. Eliason
Most of us would agree the government needs to be able to keep some secrets…
On the other hand, most of us would also agree that the government classifies far too much material. It often tries to keep information secret not because revealing it would truly harm national security but because it would be embarrassing or politically damaging. The media has always played a vital role in rooting out and exposing such information and helping hold the government accountable.
The rise of the Internet shifted this long-standing and healthy tug of war onto a new terrain. In the past, government authorities could expect that journalists who obtained classified material would fact-check what they received, contact the government for comment, and at least consider arguments that publishing the information would endanger national security. Mainstream journalists still do that today. But now outlets such as WikiLeaks are happy to throw reams of leaked documents up on the Internet for our enemies to see…
In light of this new reality, the government has in recent years brought more cases against government officials and contractors who leak, seeking to deter the flow of classified information at the source…
Now, the Trump administration has gone a step further and charged Assange for publishing leaked information, a step the Obama administration reportedly declined to take. Those charges apply not to everything that Assange disclosed, but only to the narrow subset of documents that identified confidential intelligence sources and allegedly put them at risk. Whether this indictment represents an escalating threat to the free press does not depend on whether Assange is a “journalist” – a term that probably defies any constitutionally sound definition. It depends on whether the Trump administration will choose to walk further across what had historically been a red line.
NBC News: Trump administration’s Assange indictment is a referendum on the Constitution
By Steve Vladeck
[T]he reason why the Assange case is so momentous is because it is based at least in part on a theory of criminal liability under the Espionage Act of 1917 that the government has never successfully prosecuted before…
Enacted in the midst of World War I (and, importantly, before virtually all of the Supreme Court’s modern First Amendment jurisprudence), the Espionage Act controversially made it a crime not only to spy on this country and steal national security secrets, but even simply to receive classified national security information without authorization…
So when The New York Times or Washington Post publish scoops based upon leaked classified information, technically, they are violating the plain language of the Espionage Act….
Worse still, so are their readers – who are in receipt of the unlawfully leaked classified information simply by downloading the article onto their laptop or bringing the physical newspaper into their home…
None of this is new. Even when the Supreme Court in the “Pentagon Papers” case famously rejected the government’s effort to prevent the Times and Post from publishing the documents, several of the justices in the majority suggested that those entities could potentially be prosecuted after publishing under the 1917 law. Then, as now, the question was not whether the Espionage Act allows for the prosecution of the press for gathering and disseminating classified national security information; it was whether the First Amendment in any way bars it…
It’s easy to blame the Justice Department in general, and the Trump administration, in particular, for taking the first step down such a slippery slide. But part of the blame here also lies with Congress, which has, for decades, been warned about a potential future case exactly like this – and has nevertheless chosen to leave the law unchanged.
Congress
New Jersey Globe: Menendez bill would force public companies to get shareholder approval for political spending
By David Wildstein
Public companies would need to get approval from a majority of shareholders to spend money on political activities if legislation sponsored by U.S. Senator Bob Menendez is approved…
“Dark money infesting our democracy has gone on long enough. For almost ten years, corporations and powerful special interests have been secretly spending huge sums of ‘other people’s money’ to influence our elections,” Menendez said. “Shareholders – not corporate executives – should be making the call about whether or not they want their money spent on political campaigns. This bill would finally bring some transparency to corporate political spending and strengthen democratic values in our elections.”
Menendez’s Shareholder Protection Act would require shareholders to approve a political activities budget annually by a majority vote, require corporate boards to authorize any expenditure over $50,000 within that budget, and force details of political activity to be disclosed to shareholders and the Securities & Exchange Commission.
The bill is co-sponsored by sixteen Democratic senators, including presidential candidates Cory Booker, Kirstin Gillibrand, Elizabeth Warren and Amy Klobuchar.
Online Speech Platforms
By Lukas Mikelionis
The move to quit both Facebook and Instagram came in the wake of the decision to delete “without warning or explanation the Banting7DayMealPlan,” a group that advocated a diet…
The group suspension was later overturned, but CrossFit issued a lengthy statement announcing the end of their presence on the platform.
“All activity on CrossFit, Inc.’s Facebook and Instagram accounts was suspended as of May 22, 2019, as CrossFit investigates the circumstances pertaining to Facebook’s deletion of the Banting7DayMealPlan and other well-known public complaints about the social-media company that may adversely impact the security and privacy of our global CrossFit community,” the statement read.
The company provided eight “publicly sourced complaints” as the reasons for quitting.
“Facebook collects and aggregates user information and shares it with state and federal authorities, as well as security organizations from other countries,” the first reason read.
“Facebook collaborates with government security agencies on massive citizen surveillance programs such as PRISM,” CrossFit said in the second reason.
“Facebook censors and removes user accounts based on unknown criteria and at the request of third parties including government and foreign government agencies,” it continued…
The company then added that “Facebook’s news feeds are censored and crafted to reflect the political leanings of Facebook’s utopian socialists while remaining vulnerable to misinformation campaigns designed to stir up violence and prejudice.”
New York Times: Nancy Pelosi and Fakebook’s Dirty Tricks
By Kara Swisher
Facebook’s product policy and counterterrorism executive, Monika Bickert, drew the short straw and had to try to come up with a cogent justification for why Facebook was helping spew ugly political propaganda.
“We think it’s important for people to make their own informed choice for what to believe,” she said in an interview with CNN’s Anderson Cooper. “Our job is to make sure we are getting them accurate information.”
This is ridiculous. The only thing the incident shows is how expert Facebook has become at blurring the lines between simple mistakes and deliberate deception, thereby abrogating its responsibility as the key distributor of news on the planet…
No other media could get away with spreading anything like this because they lack the immunity protection that Facebook and other tech companies enjoy under Section 230 of the Communications Decency Act. Section 230 was intended to spur innovation and encourage start-ups. Now it’s a shield to protect behemoths from any sensible rules.
Mr. Cooper must be less accustomed than some of us to the way Silicon Valley tortures the concept of free speech until it screams for mercy, because Ms. Bickert’s answer left him looking incredulous.
By conflating censorship with the responsible maintenance of its platforms, and by providing “rules” that are really just capricious decisions by a small coterie of the rich and powerful, Facebook and others have created a free-for-all with no consistent philosophy…
“We aren’t in the news business. We’re in the social media business,” [Bickert] said plaintively, as if that distinction could erase a thousand crimes taking place on the platform every day.
The States
Atlanta Journal-Constitution: Broad Georgia ethics probe targets Abrams – and her backers
By Greg Bluestein and James Salzer
The head of Georgia’s ethics commission has filed a spate of subpoenas targeting groups led by Stacey Abrams and the chairwoman of the state Democratic Party, prompting criticism that he’s trying to exact political revenge against Republican Gov. Brian Kemp’s political opponents.
The subpoenas obtained by The Atlanta Journal-Constitution were filed on April 26 by new ethics chief David Emadi and seek extensive financial, bank and payroll records from the Abrams’ campaign…
The ethics office also wants all correspondence between the Abrams campaign and a constellation of left-leaning groups that registered and mobilized voters, many with a focus on energizing minorities. They include the voting rights group Abrams helped launch and a nonprofit co-founded by state Sen. Nikema Williams, the new leader of the state Democratic Party…
In all, state ethics officials issued nine subpoenas as part of the investigation. They seek documents from several so-called “independent groups” – which are legally barred from coordinating with political candidates – that were formed in Georgia last year to help Abrams…
Abrams’ top aide, Lauren Groh-Wargo, called it “insane political posturing” to cast suspicion on Abrams, who may run against Kemp again in 2022…
“This move by Brian Kemp’s so-called ‘ethics’ commissioner is an unprecedented abuse of power against his political opponent and specifically targeting organizations that engage voters of color,” said Groh-Wargo, who was Abrams’ campaign manager.”These intimidation tactics, which are intended to shut down and silence organizations led by Georgians of color, will not stand,” Groh-Wargo said…
San Francisco Chronicle: San Francisco police chief concedes raid on journalist was wrong – ‘I’m sorry’
By Evan Sernoffsky
After two weeks of growing outrage, San Francisco Police Chief Bill Scott apologized Friday for raiding a journalist’s home and office in a bid to unmask a confidential source, admitting the searches were probably illegal and calling for an independent investigation into the episode.
Police “should have done a better job,” Scott said in an interview with The Chronicle. “I’m sorry that this happened. I’m sorry to the people of San Francisco. I’m sorry to the mayor. We have to fix it. We know there were some concerns in that investigation and we know we have to fix it.”
Scott said he has now reviewed all material relating to the May 10 search of freelance videographer Bryan Carmody’s home and office, which was part of an investigation into who leaked him a salacious police report on the February death of Public Defender Jeff Adachi – a report Carmody then sold to three television stations.
The chief said he was “concerned” that the applications for the search warrants didn’t adequately identify Carmody as a journalist – particularly a warrant to search his phone.
California’s shield law protects journalists from being forced to reveal confidential sources or hand over unpublished information including notes, recordings and pictures. It specifically bars police from obtaining this sensitive information through searches.
Charleston Gazette-Mail: Elections Commission fine-tunes new campaign finance law
By Phil Kabler
The commission worked on language to better clarify what committees and organizations are required to file in contribution and spending disclosures under the new law, Senate Bill 622…
The issue has come up in the past, with organizations contending they are not involved in political activity. Currently, the Secretary of State’s Office is pursuing legal action against an advocacy group that bought political ads in the 2018 elections but has refused to disclose contributors, contending that the organization’s primary purpose is not political.
Commissioners discussed a dollar-amount threshold to require filing the disclosures, but they concluded they did not have authority to do so, since there is no dollar threshold in the law.
Chuck Flannery, chief of staff for the secretary of state, said the definition attempts to take a rational approach to what is and is not a political action committee, excluding organizations whose primary purpose is not political, such as PETA and the ACLU.
“It allows us to put some common sense into play,” he said.
They also concluded that the law applies to organizations whose major or primary purpose is to influence the outcome of elections by spending money to support or oppose particular candidates or issues, so that the law does not apply to other ballot issues, such as referenda on proposed constitutional amendments.
Commissioners also discussed penalty provisions in the rule, which allow the Secretary of State’s Office to impose $10-a-day civil fines for each day a campaign misses financial disclosure filing deadlines…
The legislative rule advanced Friday will need to be approved by the full Legislature as part of its rule-making review process during the 2020 regular session for the changes to go into effect before the 2020 elections.
