Supreme Court
SCOTUSblog: Opinion analysis: The First Amendment, probable cause and questions left unanswered
By Howard M. Wasserman
On Tuesday, in Nieves v. Bartlett, a majority finally agreed on a standard for how probable cause affects a civil damages action for First Amendment retaliatory arrest under 42 U.S.C. § 1983: A plaintiff must show the absence of probable cause to arrest as an element of the claim and the presence of probable cause will defeat most claims, unless a plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” But the decision produced five opinions and left questions for the lower courts to resolve…
Roberts wrote the opinion for the court, joined in full by Justices Stephen Breyer, Samuel Alito, Elena Kagan and Brett Kavanaugh, and by Justice Clarence Thomas in all but one part…
Justice Neil Gorsuch began from the premise that probable cause cannot undo a First Amendment violation or erase its significance. Given the growth of criminal law and government regulation to cover “so much previously innocent conduct,” “almost anyone can be arrested for something.” If probable cause erased a First Amendment violation, “little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.” …
Justice Ruth Bader Ginsburg wrote a short dissent, arguing that “[a]rrest authority … can be abused to disrupt the exercise of First Amendment speech and press rights.” …
The lone dissenter, Justice Sonia Sotomayor began by framing the divisions among the justices. Eight justices reached the “correct and sensible bottom line” that probable cause does not always suffice to defeat a First Amendment retaliatory-arrest claim. But a slimmer majority of five justices announced a different rule – probable cause will defeat a claim unless the plaintiff “happens to be able to show” that people who did not engage in the same speech but otherwise were similarly situated were not arrested.
The Courts
Northwest Arkansas Democrat-Gazette: Political activist sues state over campaign giving
By Linda Satter
A federal judge on Tuesday scheduled a June 19 hearing on a request to prevent the state from enforcing a law that prohibits candidates for state office from accepting or soliciting campaign contributions more than two years before an election.
The hearing on Peggy Jones’ request for a preliminary injunction will begin at 1:30 p.m. June 19 before U.S. District Judge James Moody in Little Rock…
On April 5, Jones, who calls herself a longtime political activist, sued the Pulaski County prosecuting attorney and members of the state Ethics Commission, claiming that the “blackout period” law violates her First Amendment right to contribute money to candidates she wants to support for election in 2022.
In a motion for a preliminary injunction filed Thursday, her attorneys said, “The Blackout Period is unconstitutional for two important reasons. First, it is not closely drawn to address an important governmental interest, because there is no reason to believe that a campaign contribution given two years and one day before election is more likely to be corruptive than a contribution given one year and 364 days before an election.”
The motion continued: “Second, the Blackout Period is overbroad, because it bars all campaign contributions, including small contributions that do not present a potential for corruption.” …
The case was first assigned to U.S. District Judge Billy Roy Wilson, who recused Friday in a text entry that didn’t state a reason for the recusal…
In 1997, Wilson presided over a lawsuit that challenged six of seven amendments approved under a campaign-finance measure known as Initiated Act 1, which reduced contribution limits for certain offices. As a result of the suit, each of the challenged amendments was invalidated. The seventh amendment, which wasn’t challenged then, is the one now being challenged.
First Amendment
Lawfare: The U.S. Media Is in the Crosshairs of the New Assange Indictment
By Jack Goldsmith
Why did the government bring the second, much more aggressive indictment against Assange, and why were the charges against him so obviously framed to mirror what U.S. journalists do? The answer might be that the indictment is a self-conscious effort by the government to push back against the growth in the type and number of national security leaks since 9/11, and especially against the wave of unprecedented foreign intelligence information leaks by U.S. media-including revelations of U.S. person information-that have occurred during the Trump administration.
There has been a dramatic change in norms over the past few decades about what journalists will report related to national security. Mainstream U.S. media often report national security secrets now that they would not have previously published. The trend is steadily in favor of publishing more, and more types of, classified information…
I think the government aims here to push back against U.S. journalists in order to re-raise the bar on publishing classified information that has lowered pretty dramatically since 9/11. If the government succeeds in convicting Assange for some of these charges, it will alter the cost-benefit calculus of U.S. media outlets even if these outlets are themselves never prosecuted. And of course a favorable legal precedent in the Assange case might be used to prosecute U.S. journalists for publishing certain forms of classified information.
It will be interesting to see how the U.S. media responds. It will be interesting to see whether Congress responds, especially since it could amend the Espionage Act and other relevant law in any number of ways to clarify what types of national security reporting should be regulated by criminal law.
Wall Street Journal: Assange, Espionage and the Press
By The Editorial Board
Honorable reporters wouldn’t conspire to crack a password. But they do urge sources to shed light on government misdeeds, which may include asking for classified material and publishing it. So how does the Justice Department draw a line between Mr. Assange and the Associated Press?
In short, prosecutors present him as an extreme outlier, if not sui generis…
There is something to this argument. The internet allows hostile actors outside the U.S. to facilitate leaks at unprecedented scale. Imagine if in the 1980s a foreign national had been caught overseas Xeroxing and circulating 490,000 U.S. military field reports and 250,000 State Department cables. Imagine he created a list of “most wanted” secrets and set up surreptitious drop points. Would he have been viewed as a “publisher,” as many are calling Mr. Assange? Or would he have been a spy?
Second, Mr. Assange’s conduct is either malicious or singularly reckless. Aside from outing military sources, the indictment says he jeopardized “journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government.” Prosecutors cite sources in Iran, China and Syria.
They add that material from WikiLeaks was found in Osama bin Laden’s compound in Pakistan. There’s a reason Secretary of State Mike Pompeo has called WikiLeaks “a non-state hostile intelligence service.” From that perspective, the slope from charging Mr. Assange to prosecuting the AP does not look very slippery…
The Espionage Act is too broad, and where is the limiting principle? Congress could amend the Espionage Act to draw a brighter line around bad actors like Mr. Assange. Meantime, courts-and the public-need to make sure prosecutors aren’t abusing the law for political purposes.
New York Times: Julian Assange’s Indictment Aims at the Heart of the First Amendment
By The Editorial Board
Mr. Assange shared much of the material at issue with The New York Times and other news organizations. The resulting stories demonstrated why the protections afforded the press have served the American public so well; they shed important light on the American war effort in Iraq, revealing how the United States turned a blind eye to the torture of prisoners by Iraqi forces and how extensively Iran had meddled in the conflict. The Times treated Mr. Assange as a source, not a partner, and the relationship was not an easy one; his indifference to the risks of exposing intelligence sources was a particular source of friction.
The Times does not condone breaking into government computers or irresponsibly publishing the identities of sources. While Mr. Assange may not be the figure one would choose as the tribune of free speech, this is the case the government has brought…
Invoking the Espionage Act in this case threatens to blur the distinction between a journalist exposing government malfeasance – something that news organizations do with regularity – and foreign spies seeking to undermine the nation’s security…
With this indictment, the Trump administration has chosen to go well beyond the question of hacking to directly challenge the boundaries of the First Amendment. Mr. Assange is no hero. But this case now represents a threat to freedom of expression and, with it, the resilience of American democracy itself.
The Guardian: US efforts to jail Assange for espionage are a grave threat to a free media
By Alan Rusbridger
As editor of the Guardian, I worked with Assange when we jointly (along with newspapers in the US and Europe) published other material Manning had leaked. Vanity Fair called the resultant stories “one of the greatest journalistic scoops of the last 30 years… they have changed the way people think about how the world is run”. The stories were, indeed, significant – but the relationship with Assange was fraught. We fell out, as most people eventually do with Assange. I found him mercurial, untrustworthy and dislikable: he wasn’t keen on me, either. All the collaborating editors disapproved of him releasing unredacted material from the Manning trove in September 2011. Nevertheless, I find the Trump administration’s use of the Espionage Act against him profoundly disturbing.
The Espionage Act was a panic measure enacted by Congress to clamp down on dissent or “sedition” when the US entered the First World War in 1917. In the subsequent 102 years it has never been used to prosecute a media organisation for publishing or disseminating unlawfully disclosed classified information. Nobody prosecuted under the act is permitted to offer a public interest defence.
Whatever Assange got up to in 2010-11, it was not espionage. Nor is he a US citizen. The criminal acts this Australian maverick allegedly committed all happened outside the US. As Joel Simon, director of the Committee to Protect Journalists, has observed: “Under this rubric, anyone anywhere in the world who publishes information that the US government deems to be classified could be prosecuted for espionage.”
Washington Post: The indictment of Assange is a blueprint for making journalists into felons
By Glenn Greenwald
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…
“Julian Assange is no journalist,” Assistant Attorney General John Demers pronounced in announcing the indictment. By this reasoning, imprisoning Assange for publishing documents poses no dangers to “real journalists” because press freedoms are inapplicable to Assange (or, presumably, anyone else denied the “journalist” designation).
But this distinction between “real journalists” and “non-journalists” is both incoherent and irrelevant. The claim reveals a glaring – and dangerous – confusion about what press freedom means, how it functions and the reasons the Constitution guarantees its protection…
In a 1977 Supreme Court opinion documenting the limitless scope of the constitutional free press guarantee, Chief Justice Warren Burger wrote: “In short, the First Amendment does not ‘belong’ to any definable category of persons or entities: It belongs to all who exercise its freedoms.”
The historical context for the First Amendment’s press freedom guarantee was the advent of the printing press, which empowered any citizen to speak out against, or reveal information about, political authorities. It was the right to engage in that activity that the Constitution’s framers sought to protect – not just for a small group called “journalists” but for all citizens.
Indeed, the First Amendment’s “press freedom” guarantee was available to everyone precisely because it was a reaction to the British Crown’s attempt to limit who possessed this right by licensing who is and is not a “journalist,” as Burger wrote for the Supreme Court in 1977.
Congress
Just Security: Loopholes Allow Foreign Adversaries to Legally Interfere in U.S. Elections
By Fred Wertheimer
The PAID AD Act – developed by Senator Amy Klobuchar (D-MN) and Rep. John Sarbanes (D-MD) – now successfully attached as a floor amendment to H.R. 1 by Rep. Elissa Slotkin (D-MI), closes the loopholes revealed by Russia’s cyber invasion into the 2016 presidential race. PAID AD is an acronym for the less mellifluous name, “Preventing Adversaries Internationally from Disbursing Advertising Dollars.”…
The PAID Act would extend to internet ads the ban on foreign spending in connection with U.S. elections. The Act would also add a provision to prohibit foreign governments from buying broadcast or internet ads that promote, attack, support or oppose (PASO) a candidate, regardless of whether the ads expressly advocate to vote for or against a candidate. This would likely cover all ads run by Russia in the 2016 election that mentioned candidates by name…
The Act also prohibits spending by foreign governments for broadcast and internet ads that discuss national legislative issues of public importance during a regularly scheduled general election year for federal office, even if those ads do not mention candidates…
Additional legislative proposals also are being considered by Senator Klobuchar and Rep. Sarbanes to address other gaps in the current law.
One proposal would provide that opposition research or other campaign-related information is not required to have a monetary value in order to be considered a “thing of value” for purposes of the criminal penalties that apply to violations of the foreign national ban, that is, when such information is solicited from or donated by a foreign government.
A second proposal would make it unlawful to solicit any disbursement from a foreign government for the purpose of influencing a U.S election.
Internet Speech Regulation
USA Today: Are Facebook, Twitter, Google evil or just everywhere? What we have to do about big tech.
By Glenn Harlan Reynolds
Where just a few years ago, companies like Facebook or Google were seen as white knights of progress, now there seems to be a lot more skepticism about their effects and their intentions.
I saw this firsthand last week when I spoke at a conference on free speech and social media at Stanford Law School, where I talked about my new book, “The Social Media Upheaval.” As I discuss in my book, the rise of social media has brought about a lot of change, and much of it isn’t appreciated.
In the book, I note that although our society generally supports free speech quite strongly, we do regulate speech that is too dangerous – like incitement to riot – or speech that is false and defamatory, and we often regulate things that are addictive, or invasions of privacy. Social media tends to have all of those characteristics to varying degrees. Some of that is because of how it is structured.
In the days of the old blogosphere, when people expressed views on their own personal blogs, scattered across many different servers and platforms, other blogs might pick them up. But each time that happened, it took a conscious decision, and at least some degree of thought, to compose and publish a blog post…
At the same time, unlike the old blogosphere with its many independent platforms, social media sites have a common platform. Censoring the old blogosphere was impossible; censoring social media is possible, which means that social media companies face demands to do so.
Thus today’s social media world tends to give us the worst possible outcome: lots of angry, ill-informed speech, coupled with censorship of things that the platform owners don’t like or are pressured into killing…
In fact if I were Facebook, et al., I’d be particularly worried by something I noticed at the conference: Both left- and right-leaning speakers don’t like them and want them brought under control.
The Resurgent: When ‘Fairness’ Becomes Censorship
By Billy Easley II
Whether or not you agree with claims that American tech companies have attempted to mitigate conservative opinions, history shows that ham-fisted attempts by government to enforce “fairness” in matters of speech usually result in less freedom for all.
Legislation like the Radio Act of 1927 gave the government the power to enforce “fairness,” such as giving “equal time” to both sides of a political issue. It sounded good in theory. In practice, the result was that radio stations with unusual or nonstandard content were deemed too extreme by government regulators and denied licenses to operate. In the pursuit of “fairness,” dissenting voices were silenced…
What many of our elected officials are forgetting is that Section 230 is what made the internet what it is today: an open space conducive to innovation. Wired has gone so far as to refer to the law as “sacred.” Since internet platforms can host user-generated content without fear of prosecution, millions of people, conservatives included, can post content on and enjoy sites like Facebook, Twitter, YouTube, Amazon and Airbnb.
Section 230 acknowledged a basic reality: that if these sites could be sued for what their users said or did or were policed for their neutrality, they would simply choose not to allow content that might offend people. That would silence those deviating from the straight and narrow – converting the free and open internet into a vast wasteland of ordinary.
Political Parties
Associated Press: Democrats up requirements for 2nd round of primary debates
By Bill Barrow
The Democratic National Committee is upping the ante for its second round of presidential primary debates, doubling the polling and grassroots fundraising requirements from its initial summer debates…
The DNC’s outline for its September debate – the third of at least a dozen promised matchups during the 2020 nominating fight – decrees that candidates can participate only by reaching 2% in four approved polls released between June 28 and Aug. 28 while also collecting contributions from a minimum of 130,000 unique donors before Aug. 28. That donor list must include a minimum of 400 individuals in at least 20 states. The qualifications would remain the same for an October debate, though the party hasn’t set the deadline for measuring fundraising and polling…
The first debates are June 26-27 in Miami. The second set of debates is on July 30-31 in Detroit . Those first rounds carry a polling threshold of 1% and a fundraising mark of 65,000 donors with a minimum of 200 in at least 20 states…
[Democratic Chairman Tom] Perez has pledged to give all candidates a voice while championing the grassroots of the left that has blossomed since President Donald Trump’s election. That grassroots energy was the impetus behind the fundraising metrics, which were developed in consultation with ActBlue, the left’s online fundraising clearinghouse that is helping DNC certify candidates’ fundraising measures.
DNC officials were prepared for potential criticism, releasing a statement from ActBlue Executive Director Erin Hill ahead of Wednesday’s announcement.
“Candidates who will be prepared to take on Trump in the general should already be working to build programs that can bring in 130,000 donors by the second round of debates,” Hill said.
The States
WRVO Public Media (New York State): Reform groups: Scrap state ethics panel
By Karen Dewitt
The Center for Public Integrity, a nonprofit news organization, surveyed state ethics panels around the country and found that New York’s ranked near the bottom for independence and transparency. The group gives the Joint Commission on Public Ethics, or JCOPE, an “F” rating for its lack of oversight.
Alex Camarda with Reinvent Albany said his group and other reform organizations have been saying for years that JCOPE is fatally flawed. He said one inherent conflict is that the commissioners are appointed by the governor and the Legislature, the entities that they are supposed to regulate…
Reinvent Albany, along with other reform groups, including Common Cause and the League of Women Voters, said the only good way to fix JCOPE is to start over with a new ethics panel. They wrote a letter to Cuomo and Legislature leaders, asking for a complete overhaul of JCOPE, and the Legislative Ethics Commission, which oversees accusations of wrongdoing against senators and Assembly members.
“What we would like to see, ideally, is a body that’s established in the constitution that not only handles ethics but also looks at campaign finance and other issues,” Camarda said. “And is appointed by an independent body, for example, the judiciary, so that the appointing authorities aren’t the very people who are regulated by the ethics body.”
