Posts Tagged ‘First Amendment’

Judge dismisses Greentech Lawsuit in Win for First Amendment

Wednesday, July 30th, 2014

A federal judge in Mississippi last week threw out an $85 million defamation lawsuit brought by a politically connected corporation against a Virginia journalism non-profit. The procedural ruling drew little attention, and it could still be appealed. Even so, the dismissal represents a nice first-round victory for a news organization whose real crime was probably that it looked too closely at the business dealings of Virginia’s new Democratic Gov. Terry McAuliffe.

Before he ran for governor, McAuliffe was co-founder and chairman of GreenTech, a maker of “neighborhood electric vehicles” — golf-cart-sized two-seaters that max out at 35 miles per hour and sell for about $16,000. While campaigning for governor of Virginia in 2013, McAuliffe cited the company frequently as evidence of his business acumen.

Read the full article at the Washington Examiner


First Amendment Under Attack While Chickens Die

Tuesday, August 7th, 2012

By Jason Stverak | Franklin Center for Government and Public Integrity

Last Wednesday was not a good day to be in a chicken in America. For decades our feathered friends feared the name of Colonel Sanders. Today, their faith is sealed by political leaders who prefer to stifle free speech instead of supporting free enterprise. Politicians are crying fowl over the values of Chick-Fil-A restaurants and chickens are the innocent and tasty victims of their wrath.

Chickens are of course not the only victims of the attack against the first amendment. Taxpayers and those who want to be taxpayers are falling prey to the attack on free speech. Cities that desperately need the tax revenue and jobs new Chick-Fil-A franchises would bring to communities are no longer welcoming the fast-food giant.

A Facebook status update said it all above a photo of a suburban Chicago Chick-Fil-A with a line outside the door, “Every fast food restaurant should ask Rahm to boycott them.” This was in reference to Chicago Mayor Rahm Emanuel comments that Chick-Fil-A “are not Chicago values.” The “Godfather” as he is affectionately called by the Drudge Report set off a firestorm in the Windy City with his remarks. The chicken franchise has been looking to expand into Chicago which desperately needs the jobs and tax dollars. Emanuel, angry over Chick-Fil-A President Dan Cathy’s remarks last month that he supported the biblical definition of marriage as between a man and woman, is finding that his disdain for the Chicken chain is resulting in greater sales for the restaurant.

Chick-Fil-A reported that last Wednesday which was the aforementioned “Appreciation Day” occurred “record-setting” sales day. Social media and new media served as the driving force behind the financial and public relations success of the event. However, the catalyst that resulted in a shortened life-span for millions of chickens, national earned media and huge profits for Chick-Fil-A, was an attack on free speech and the free market.

Agree or disagree with Dan Cathy’s comments regarding marriage is secondary in this controversy. Elected officials using a political agenda to decide who can and cannot operate a business are what most Americans find disconcerting.

The chickens have other concerns.

First Amendment protects bloggers, too

Saturday, February 18th, 2012

By Jason Stverak | President of the Franklin Center for Government and Public Integrity

WASHINGTON EXAMINER — This past December, federal judge Marco Hernandez of Oregon issued a ruling in the libel trial of Obsidian Finance Group v. Cox that has dangerous First Amendment implications.

Shield Laws: Journalists as a Protected Class?

Wednesday, January 27th, 2010

By James Skyles, Esq.

A few weeks ago I was in Washington D.C. training a group of reporters on legal issues that come with the profession when one asked if journalists should be considered a protected class.

Yes. The same legal standard shielding priests and doctors should apply to journalists and their confidential sources.

To my surprise, many were shocked, given my usually libertarian philosophical persuasion.  Several responded that allowing the government to classify journalists as a protected class would open the door to regulation, curtailing freedom of speech.  I decided to give it some thought and do some research.

Not only are journalists a protected class, they are the only professionals protected by the United States Constitution.  The first Amendment states: “Congress shall make no law abridging the freedom of the press … .” Courts could nullify any regulation passed by Congress that could abridge the freedom of the press.

Some constitutional originalists argue the First Amendment applies to everyone, not just journalists.  I would agree, except there is a difference between what the law considers journalism and what the profession considers journalism.

Those engaged in the profession often exclude columnists, commentators and pundits.  The law is much broader.  It considers all engaged in the act of journalism to be journalists, from the blogger in his underwear to a Madison Avenue fashion editor in a hand-tailored blue suit.

An example played out in a recent episode of the new legal drama series “The Good Wife.”  In the episode a commentator/pundit, an obvious Glenn Beck parody, was on trial in a wrongful death civil suit for inciting a woman to commit suicide by repeatedly accusing her of killing her own child.

The court concluded that the First Amendment applies to him as a journalist, even though he was not one by the standards of the profession.  Though the episode showed a fictitious event, and somewhat distorted the law in other ways, it did accurately show how the law treats journalists.

So what is the effect of a shield law?  Though the Supreme Court has not afforded Constitutional protection of journalist’s sources, as it should have, shield laws do.  The legal test on whether a law is an unconstitutional abridgement of the freedom of the press should be whether it expands or hinders freedoms of journalists.

If it hinders in any way by excluding bloggers, pundits or commentators, then the law should be unconstitutional.  If the law expands the rights of all journalists, then courts should uphold it as bolstering the First Amendment.

James Skyles is Director of Operations and General Counsel for the Franklin Center for Government and Public Integrity.

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TSA Goes After Bloggers

Thursday, December 31st, 2009

After the smoke cleared from an attempted mid-air terrorist attack on Christmas day, the Transportation Security Administration (TSA) began working to track down…bloggers that revealed new safety policies.

Two bloggers received home visits from Transportation Security Administration agents Tuesday after they published a new TSA directive that revises screening procedures and puts new restrictions on passengers in the wake of a recent bombing attempt by the so-called underwear bomber.

Special agents from the TSA’s Office of Inspection interrogated two U.S. bloggers, one of them an established travel columnist, and served them each with a civil subpoena demanding information on the anonymous source that provided the TSA document.

The TSA directive, which ordered intensive screening and pat-downs before flights, was sent to thousands of airport personnel the world over. But the document also met the eyes the bloggers, Chris Elliot and Steve Frischling. Unamused, TSA investigators paid both bloggers a visit to discuss how they came upon those documents.

Frischling said he met with two TSA special agents Tuesday night at his Connecticut home for about three hours and again on Wednesday morning when he was forced to hand over his lap top computer. Frischling said the agents threatened to interfere with his contract to write a blog for KLM Royal Dutch Airlines if he didn’t cooperate and provide the name of the person who leaked the memo.

The case is not unlike the treatment of journalism students at Northwestern University who uncovered evidence hinting towards a wrongful conviction in a capital murder case. Prosecutors in Cook County, IL have subpoenaed the notes and even grades of the students involved in the investigation, bypassing the state’s media shield law by classifying the budding journalists as private investigators.

Had the memo been revealed by the Associated Press or New York Times, would there be an investigation–or threats to some journalist’s livelihood?

Murder Conviction in Question, Prosecutors Investigate Students’ Grades

Thursday, November 5th, 2009

While Washington works to protect journalism in all its forms, President Obama’s adopted hometown is doing its best to stifle an investigation into potential miscarriages of justice. For years, students at the Northwestern University Medill School of Journalism have investigated possible wrongful convictions in the Illinois justice system, as a part of Project Innocence. These student-run investigations have produced results:

Anthony Porter Hugs Loved Ones After Being Freed From Deathrow. Journalism Students at Northwestern University Helped Produced Evidence proving is Innocence

Anthony Porter hugs loved ones after being freed from deathrow.

[Professor David] Portiss and his journalism students have uncovered evidence that freed 11 innocent men, five of them from death row. The Project’s work, which has been featured on “60 Minutes,” “48 Hours,” “Dateline NBC” and the front pages of The New York Times and the Washington Post, has been cited for stimulating a national debate on the death penalty.

Not everyone is thrilled with these results, especially the Cook County District Attorney’s office, which is now doing some investigations of its own–on the program’s reports concerning a 30-year-old murder trial. Most recently, students helped win a new trial for Anthony McKinney, who was convicted in 1978 of gunning down a security guard, after uncovering new evidence that hinted towards his innocence.

The students said they had found, among other things, that two eyewitnesses had recanted their testimony against Mr. McKinney and could not have seen him commit the killing because they were watching a boxing championship (Leon Spinks vs. Muhammad Ali). The students collected an affidavit from a gang member who, they say, confirmed Mr. McKinney’s alibi that he was running away from gang members when the shooting took place.

Now, the state has turned its attention from McKinney to the students that participated in the investigation:

Prosecutors have subpoenaed the grades, grading criteria and syllabus and email messages of students who participated in Northwestern University’s Medill Innocence Project

Prosecutors have even subpoenaed the notes taken by the students in the investigation, which opens the door to additional 1st Amendment questions. The Illinois media shield law protects reporter’s notes and other source material from the state. There is a catch, however:

Whether the shield law covers you depends on whether the law deems you a “reporter,” and on the medium in which you work.

Cook County prosecutors have attempted to bypass media protection laws by classifying the journalism students as members of an “investigative agency,” whose notes and other materials do not enjoy the media “shields” of traditional news outlets. The case carries far reaching implications in America’s common law system as it applies to the definition of a journalist:

If the courts find that Mr. Protess and the journalism school must turn over the student information, they risk being held in contempt if they refuse, said Dick O’Brien, a lawyer who is representing Northwestern.

But if the school gives in to such a demand, say advocates of the Medill Innocence Project and more than 50 similar projects (most involving law schools and legal clinics), the stakes could be still higher, discouraging students from taking part or forcing groups to devote time and money to legal assistance.

The project has attracted its share of defenders in the press and in academia:

Don Craven, acting executive director of the Illinois Press Association, said the request seems harassing at best, and at worst looks like an attempt to discredit the work done by the Innocence Project to ferret out wrongful convictions.

“They’re either trying to undermine the investigation, or they’re trying to undermine the entire project,” Craven said.

Turning over such a wide range of information, he said, would cripple the Innocence Project’s ability to get witnesses to cooperate in the future.

Prosecutors have tried to allay these concerns emphasizing that they share the university’s goal of seeking truth and justice. The students’ work, the DA’s office says, can only help the state achieve a better understanding of Mr. McKinney’s guilt or innocence:

“We’re not trying to delve into areas of privacy or grades,” Ms. Daly said. “Our position is that they’ve engaged in an investigative process, and without any hostility, we’re seeking to get all of the information they’ve developed, just as detectives and investigators turn over.”

The state’s hostility, however, is not the issue–the state’s definition of what constitutes a reporter is the question that prosecutors should be answering, according to the school’s defenders. Luckily, Illinois’ media shield law does just that:

Sec. 8‑902. Definitions.

(a) “Reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .
(b) “News medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.

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Judith Miller on Confidential Sources

Monday, November 2nd, 2009

America’s most famous jailed reporter discusses the importance of protecting the identity of sources. The issue has made headlines in recent weeks, as the Senate considers a bill that would shield journalists and new media bloggers from naming confidential sources.

Media Protection Bill Garners Support from Senate, White House

Monday, November 2nd, 2009

A bill aimed at striking a balance between the First Amendment and National Security is now one step closer to passage, earning the support of White House and Senate leaders.

The “Media Shield Bill” would protect reporters from disclosing the identity of confidential sources unless it is in the interest of national security. The legislature made sure to involve media leaders in drafting the bill, which in turn has helped to generate support from the industry. As the AP reports:

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press and a member of the media team involved in the negotiations, said they were strongly recommending that the larger media coalition backing reporter protections endorse the agreement.

“I think it is a compromise we can live with and it seems to be a compromise the White House can live with. It’s certainly better than the status quo,” Dalglish said.

The status quo to which Ms. Dalglish refers is the same one that saw former New York Times reporter Judith Miller spend three months in jail for refusing to identify her source in the Valerie Plame leak case. Ms. Miller was freed only after her source, Scooter Libby, Vice-President Dick Cheney‘s Chief of Staff, gave her permission to reveal his identity. Libby would later be jailed himself for the leak before his sentence was communted by then-President George W. Bush.

The bill also makes headway in recognizing new media outlets, extending “coverage to unpaid bloggers engaged in gathering and disseminating news information.” This is a major win for the blogosphere as the legislation would define journalists by the work they produce, rather than the organization that signs their paychecks. This marked a reversal from the bill that reached the Senate in September, when Sen. Charles Schumer (D-NY) specifically excluded protection for bloggers and new media journalists.

The Media Shield Bill hopes to avoid future First Amendment controversies by allowing federal judges to apply a balancing test between the public’s right to know and the government’s duty to protect the public. This balancing test, however, would be dismissed if the government could prove that, “forcing the reporter to identify a source would help prevent or mitigate a future terrorist attack or other future acts that are ‘likely to cause significant and articulable harm to national security.'”

The bill represents the first effort to shield reporters in federal court, although the media has enjoyed such protections in lower courts.

No federal law shields reporters who refuse to disclose confidential sources even though 37 states and the District of Columbia have laws providing legal protection.

The original Media Shield Bill passed the House of Representatives in March, but was stalled in Senate committee after the White House, prosecutors and intelligence advisors expressed concern about the bill’s impact on national security. Friday’s compromise does not guarantee passage, but it does get the ball rolling again.

Ms. Dalglish is not counting her chickens just yet:

“This is a huge deal, but it’s not a done deal, and quite honestly, until all of the media coalition members sign off on it, it’s not a deal.”

The White House is a bit more optimistic:

“We have been engaged with members of the Senate and the media to craft legislation that protects the confidentiality of reporters’ sources and gives the courts the power to decide whether the disclosure of such information is ever necessary in the interests of national security or other imperatives,” [White House spokesman Ben] LaBolt said. “The President looks forward to signing it into law.”

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