Don't Throw Out The First Amendment's Press Protections Just Because You Don't Like President Trump

from the not-how-it-works dept

Back in April, when the DNC first sued a whole bunch of people and organizations claiming a giant conspiracy between the Russians, Wikileaks and the Trump campaign, we warned that beyond the complaint including a ton of truly nutty claims, it was also an attack on the 1st Amendment. Much of what was described as violating the law by Wikileaks and others was classic journalism activity -- and a ruling in favor of the DNC would do massive harm to the 1st Amendment. Indeed, as the case has continued to move forward, more and more media organizations are warning about the possibility of a catastrophic outcome for news media should the DNC win this case.

Perhaps ironically, this puts Donald Trump on the same team, legally, as the people he repeatedly insists are "the enemy of the people." His lawyers, of course, don't mind the double standard and have been quick to correctly wrap themselves in the First Amendment to try to get the lawsuit dismissed. This is the proper result.

Unfortunately, Trump derangement syndrome means that otherwise competent people keep searching for a "but, Trump... " exception to the 1st Amendment. Over at Just Security, two former Obama White House lawyers -- Bob Bauer and Ryan Goodman -- try to argue the case for why the 1st Amendment doesn't protect the Trump campaign in this case. The crux of their argument is that the campaign was a lot more involved in seeking damaging information, rather than just passing it around once it had been leaked.

It is on fundamental factual distinctions between Bartnicki and the Trump case that the campaign’s First Amendment theory founders.  Unlike Bartnicki’s radio host, the campaign is not free of involvement in illegal activity. It did not merely comment on what the Russians and WikiLeaks conspired to make public. It willfully engaged with both the Russians and WikiLeaks in both the pursuit and the publication of the stolen emails—actions that bump up against clear prohibitions in federal campaign finance law. Foreign nationals may not contribute or spend funds to influence an American election, and, crucially, a U.S. political campaign cannot assist or act in coordination with foreign electoral intervention.

We know that the Russians were peddling assistance to a receptive campaign, that the campaign learned as early as April 2016 that Russians possessed stolen emails, th... Jr. advised the Russians on when to release derogatory information (“later in the summer”), that the Russian hacking operation continued long after the Russians first made contact with and were greeted receptively by the campaign, that the president himself publicly encouraged the Russian government to locate the so-called “missing“ Clinton emails, and that Russian spies quickly followed by trying to hack Clinton’s personal email. There are also reports that the Russians may have previewed the plan to disseminate the emails before ever doing so.  For the purposes of the ongoing civil suit, those allegations alone rob the campaign of its current defense.

But those paragraphs make a ton of assumptions, often without enough evidence to back it up. But much, much, much worse is the following paragraph that Bauer and Goodman put in, claiming that the media shouldn't be concerned about the 1st Amendment impact of this case:

There is misplaced concern that a defeat for this First Amendment defense puts media protections at risk. Federal campaign finance regulation supplies useful guidance here: It exempts standard journalistic activity, but denies those protections to conduct outside the “legitimate press function.” It is clear from disclosures by an internal WikiLeaks critic and other materials that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of Wikileaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press.

That paragraph is frightening and should worry anyone who believes in the 1st Amendment's protections for the press. These lawyers are basically arguing that they get to decide what is and what is not a "legitimate press function" and that working with a campaign automatically makes it not a legitimate press function. As Glenn Greenwald notes, there's a viable argument that under the description that Bauer and Goodman lay out here someone could just as easily argue that Vox or MSNBC aren't protected by the 1st Amendment either:

Some will argue that there are differences of degree and level of cooperation, but even if that's true (and it's not clear that it is), you've already wiped out the basic 1st Amendment protections because now every media outlet will need to argue, over and over again, whether or not any of its activity counts as "a legitimate press function." That would create massive chilling effects, and is a standard that could be easily abused.

Hell, just to bring this all back around, it doesn't take a stable genius to figure out what President Trump would start doing if he could argue the 1st Amendment doesn't apply to publications engaged in things that are "not a legitimate press function." And, incredibly, the DNC seems to want to hand him this very power. It's mind-boggling.

Dan Froomkin has an excellent reply to the Bauer/Goodman piece. He agrees that there may be some violations of the law buried in everything, but lumping in Wikileaks (even as he calls Julian Assange's recent activities "despicable") here is an attack on the basic 1st Amendment protections for journalists. Even if you dislike Trump massively, supporting these arguments is an attack on the press that will come back to bite everyone by handing the government and others a tool to argue that certain press activities are somehow not protected for not being "a legitimate press function."

Filed Under: bob bauer, collusion, donald trump, first amendment, free speech, press freedom, ryan goodman
Companies: wikileaks

Judge Responds To Open Records Request By Having Requester Indicted, Arrested

from the FOIA-TO-JAIL.-FOIA-DIRECTLY-TO-JAIL.-DO-NOT-PASS-GO. dept

We've seen government officials do some pretty questionable things to avoid turning over documents to FOIA requesters. The most common method is just to stick requesters with a bill they can't pay. Stonewalling is popular, too -- so much so that the federal government sends out "Still interested?" notices to people whose requests have been backburnered for years.

More rarely, officials will race requesters to the courthouse, hoping to secure a judgment in their favor stating that they've already fully complied with a FOIA request -- even when they've done nothing but withhold and redact. Stripped of all the legal wrangling, this is basically the government suing individuals for asking for documents, forcing taxpayers to go out-of-pocket if they hope to counter the officials' assertions.

But one thing we haven't seen is a government official securing a grand jury indictment against open records requesters… for making open records requests.

A North Georgia newspaper publisher was indicted on a felony charge and jailed overnight last week – for filing an open-records request.

Fannin Focus publisher Mark Thomason, along with his attorney Russell Stookey, were arrested on Friday and charged with attempted identity fraud and identity fraud. Thomason was also accused of making a false statement in his records request.

The pair had been going after local judge Brenda Weaver and other court staff for some time, tracing back to her predecessor's (former judge Roger Bradley) use of a racial slur in the courtroom. The slur was attached to a defendant's name, and this slur was repeated by the district attorney and court deputies. Thomason acquired a copy of a transcript only to find the repeated use of the slur by court deputies had been removed. He asked for the audio recording of the hearing and was rejected.

This led to an article by Thomason in which he noted the missing slurs and presumably questioned the court stenographer's skills/honesty. The court stenographer sued Thomason for defamation, seeking $1.6 million in damages. The suit was dropped when it became clear Thomason, like many journalists, is judgment-proof -- i.e., there's no way he had anything close to $1.6 million laying around. The case was closed by a judge who determined Thomason had no proof that the transcript was inaccurate.

The court stenographer then filed a motion to recover legal fees, despite the fact that then-Judge Bradley had already cut her a check for $16,000 to reimburse her for her legal costs. That led to the current run of subpoenas and records requests in which Thomason hoped to show a judge that the stenographer had already recovered her legal fees.

Judge Weaver's response to this lawful dig for pertinent records was to work in concert with the district attorney to bring charges against the pair -- claiming ridiculously that "Thomason would use the banking information on those checks for himself."

Weaver's accusations -- pushed past a grand jury by District Attorney Alison Sosebee -- are exactly that: she's accusing Thomason of seeking to take funds from Weaver's bank account. According to Count One of the indictment [PDF], Thomason's subpoena -- which sought front/back copies of checks issued from the account -- was nothing more than a failed attempt at identity fraud.

...with intent to unlawfully appropriate resources of said victim, contrary to the laws of this State…

The next count is just charge stacking: attempt to commit identity fraud. The third, however, seeks to make the filing of a public records request a criminal act.

…[w]hen the accused requested documents pursuant to the Open Records Act… to Robert P. Jones [Chairman of the Pickens County Board of Commissioners] and specifically requested "the actual cleared checks (front/back) that Pickens County had written to Judge Brenda Weaver and Judge Roger Bradley for Pickens County's portion of the quarterly operating account expenses for the judges from the years 2013, 2014, and 2015" and further stated "after reviewing only the checks written on behalf of Fannin County for the 2015 year and finding that, according to several banks, some of these checks appear to have not been deposited but cashed illegally," knowing the same to contain a false and fictitious representation…

In short, Judge Weaver claims the requesters lied on their request... which is apparently against the law... somehow. While the statute does forbid the use of false statements in documents submitted to officials, there's no indication it was meant to cover allegedly inaccurate assertions made in open records requests. On top of that, the quoted request makes it clear the assertion of illegality was made by "several banks," not the requesters themselves.

It could be that Judge Weaver is simply trying to shield courtroom employees from what she apparently views as harassing behavior. But the decision to handle the situation with a grand jury indictment, rather than litigating the open records request itself, definitely gives the situation the appearance of a concerted coverup. The subpoenas may be more legally questionable, but the application of this statute to an open records request looks like someone with a keen interest in keeping requested documents out of the hands of the journalist seeking them.

Filed Under: brenda weaver, foia, identity fraud, mark thomason, open records, press freedom, punishment, russell stookey
Companies: fannin focus

Peter Thiel's Gawker-Killing Lawyer Now Issuing Bogus Defamation Threats Over Story On Donald Trump's Hair

from the this-is-philanthropy? dept

Earlier this week we noted that Peter Thiel's legal vendetta against Gawker went way beyond just the Hulk Hogan case. In fact, it appeared that Thiel not only paid the lawyer, Charles Harder, to set up his own legal practice (without revealing to Holder who was really paying the bills), but basically sought to help pay the bills of lots of folks pushing legal claims on Gawker, no matter how tenuous. That included a questionable labor dispute (where even the plaintiff said he felt used by the lawyer) and a weird defamation case in which the court easily tossed out the defamation claim against Gawker, but the plaintiff, Meanith Huon, settled the claim against Above The Law (where his argument was marginally stronger), but appealed the ruling against Gawker, telling the court that he wasn't concerned about the appeal because he was "getting support from Hulk Hogan's lawyers in California." The deeper you look at the Huon case, the more ridiculous it seems. The Forbes report (adblocker blocker warning) noted at one point:

Harder didn’t even know who was funding the litigation until FORBES broke the news in May. What he surely did know: The checks cleared. And there was presumably more where that came from, if he could find more cases.

It would appear that the checks are still clearing, because Harder is threatening Gawker with yet another defamation lawsuit, this time involving a silly story about Donald Trump's hair. He's not threatening on behalf of Trump, but rather on behalf of the firm that the Gawker piece suggests may be "treating" Trump's hair, a company called Ivari International.

Gawker originally did not actually post Harder's threat letter, because it included a completely bogus claim that the letter itself could not be republished due to copyright:

This letter is confidential and protected by applicable Copyright law, and therefore may not be copied, published, disseminated or used by any person for any purpose, other than internally at your company and its outside legal representatives for purposes of evaluating the claims herein and complying with the foregoing demands.

We see these kinds of notices all the time, and know that you absolutely can republish such threat letters without fear of actual infringement, but as Gawker's reporter rightly notes, doing so might only give Harder yet another opportunity to pile on a questionable lawsuit. After some consideration, however, Gawker changed its mind and posted the letter. It's as ridiculous as you'd expect. It lists out 19 specific statements from the original article, which it claims are false and defamatory. At the very least, that's more advanced than most purely bogus threats that don't highlight exact statements.

Still, the key statements that Harder claims are defamatory are taken directly from other lawsuits against Ivari, and there's what's known as fair reporting privilege, which allows you to quote what's found in a lawsuit and not be liable as if you'd said it yourself. Many of the other statements are minor issues that hardly rise to the level of defamation in any sense of the term, let alone hitting the necessary standards of being done recklessly with malicious intent, as would be necessary for a defamation claim to succeed. Incredibly, in the very first item, Harder even changes a word to misrepresent what Gawker's article said. Here's from the Gawker article:

What’s more, Ivari’s New York location was inside Trump Tower—on the private floor reserved for Donald Trump’s own office.

Note the "was inside" statement? Here's the line that Harder claims is defamatory:

"What's more, Ivari's New York location is inside Trump Tower—on the private floor reserved for Donald Trump’s own office."

Notice a difference? That's right, in Harder's version he changes "was" to "is." Many of the other claims are of a similarly dubious nature.

Separately, Harder's letter claims this is a defamatory statement:

Ivari's business brochure refers to microcylinders as "microextensions."

Except... the Gawker article doesn't actually do that. Rather it just asks a question about whether or not the two things are the same:

At the very least, microcylinders would certainly explain how a 69-year-old man could grow hair with the capacity to effectively wrap itself around the circumference of his head several times over. Without having direct access to Donald Trump’s head, of course, it’s difficult to say for sure exactly how these attachments would function. Are they simply a web of additional hair as described in the Roach lawsuit? Do the microcylinders include what the Ivari brochure dubs “microextensions,” ensuring extraordinary length?

That's not what the Harder lawsuit implies Gawker said at all.

Then there are clear statements of opinion, such as the Gawker author stating that a hair treatment method from Canada "appears to be fairly similar to" Ivari's process. "Appears." In other words, it's an opinion, not a statement of fact. You can't sue over statements of opinion. There's the claim in the threat letter that Ivari "often depicts himself as a doctor." By itself, that claim could potentially be defamatory, but Harder leaves out that Gawker didn't actually say that. Rather it quoted a lawsuit that said that, and that's protected under the fair reporting privilege. The only other claim that could be possibly defamatory is one claiming that Ivari had its license suspended in California for tax-related reasons. Gawker's original story links to the California Secretary of State's website from which it pulled the records. It's possible that Gawker's reporting was wrong from its research, but making a good faith error hardly would rise to the level necessary for a defamation claim.

Gawker has also published its own response to Harder, which is worth a read.

I write in response to your June 9 letter in which you demand that an article about Donald Trump's hair be unpublished. You are requesting the retraction of an investigatory news article revealing information about the presumptive Republican presidential nominee that he might consider unflattering. Yet, you say your takedown demand is made on behalf of Edward Ivari. This is a vastly overbroad demand to be made for Mr. Ivari, who plays only a part in the article about Donald Trump. It's also a surprising demand to be made by Mr. lvari considering that he had ample requests from our reporter to contribute to the article, and because you take no issue with the central thesis of the piece that Mr. Ivari has worked on Donald Trump's hair. Further, you declare as libelous 19 statements in the article, all of which are from "lawsuits" or are innocuous on their face, such as the statement about the location of Mr. Ivari's office. Accurate descriptions from court records and non-defamatory statements do not create viable claims for libel and are not cause to "immediately and permanently" remove a news article.

Gawker also takes issue with the demand that the threat letter not be shared:

You also demand that your letter be maintained in secret. You declare it "confidential and protected by applicable Copyright law," and explain that this means it "may not be copied, published, disseminated or used by any person or for any purpose, other than internally at [Gawker Media] and its outside legal representatives for purposes of evaluating the claims [] and complying with the [] demands." We have never agreed to such confidentiality or to limitations on what purposes we may use your letter. It is understandable, as explained above, why you would want to keep the substance of your letter private, but it is still remarkable that you would try to prevent us from making it public. At least one litigation you are responsible for is part of an admitted effort to use the legal system to destroy Gawker Media, a controversy that has vast public interest and implications. The plan was effectuated confidentially for years until the press brought it to light. We will not voluntarily keep hidden your latest legal effort against us.

Gawker's letter further notes that if Harder provides any actual evidence of false statements, the company will correct them, but they note that nothing in the original reporting is false or inaccurate. Once again, the threat appears to be ridiculous, and little more than yet another questionable lawsuit to toss on the file against Gawker to bury the company in legal fees.

Thiel often claims to be about supporting big disruptions in technology. If he dislikes Gawker this much, why not fund competitors who will drown Gawker out of the market, rather than abusing the judicial system to have regular SLAPP-style threats made against a publication that he doesn't like?

Filed Under: charles harder, defamation, donald trump, donald trump's hair, peter thiel, press freedom
Companies: gawker, ivari

Eric Holder Was The Worst Attorney General For The Press In A Generation: We Deserve Better

from the but-will-we-get-it dept

Attorney General Eric Holder announced he would resign yesterday, after serving as the nation’s top law enforcement official since President Obama came into office in 2009. Holder will leave behind a complex and hotly debated legacy at the Justice Department on many issues, but one thing is clear: he was the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon’s John Mitchell pioneered the subpoenaing of reporters and attempted to censor the Pentagon Papers.

Holder presided over the largest legal crackdown on journalists’ sources in American history. Under his watch, the Justice Department prosecuted more sources and whistleblowers under the Espionage Act than all previous administrations combined, and many of those cases directly led to surveillance of reporters. In one, the Justice Department secretly subpoenaed twenty Associated Press phone lines, gathering information on over one hundred AP reporters. In another, the Justice Department accused Fox News reporter James Rosen in court documents of being a “co-conspirator” and “aiding and abetting” State Department employee Stephen Kim in violating the Espionage Act. Both moves by the Justice Department were personally approved by the Attorney General.

After a loud public backlash, the Justice Department recently tightened its media guidelines, but that hasn’t stopped them from attempting to force one of the nation’s best national security reporters, New York Times’ James Risen, into jail for refusing to testify against an alleged source. In Risen’s case, the Justice Department caused the most damage to reporter’s privilege in decades when it convinced the Fourth Circuit to do away with the privilege in its jurisdiction altogether. Shamefully, Holder’s Justice Department argued in front of the Court of Appeals that not only did Risen not qualify for reporter’s privilege, but the privilege did not exist at all, literally comparing reporters who protect sources who tell them about sensitive information to receiving drugs from a drug dealer and refusing to talk about it.

Despite all this, Eric Holder had previously promised that, “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” How the Justice Department could pursue contempt of court charges against Risen but keep him out of jail was unknown. But now that Holder is stepping down, the Justice Department is not obligated to abide by his promise.

The Justice Department’s pursuit of Risen has led to a petition signed by over 100,000 citizens, and over twenty Pulitzer Prize winners issued statements condemning it. The Justice Department has still refused to drop its pursuit.

And often forgotten in the Justice Department’s awful crackdown on the press, is its sprawling, four-year grand jury investigation into WikiLeaks for publishing classified State and Defense Department documents in 2010 and 2011, under a “conspiracy to commit espionage” theory where WikiLeaks may or may not have asked source Chelsea Manning to send them the documents. Many have referred to it as the largest investigation of a publisher in American history.

Despite the fact that the investigation has been widely condemned by legal experts and Constitutional scholars—former Times general counsel James Goodale said Holder might as well be investigating WikiLeaks for “a conspiracy to commit journalism”—recent court documents show the grand jury is still active.

Any indictment would leave all US newspapers in the perilous position of constantly under threat of prosecution when publishing supposedly “secret” information. But even without an indictment, the open-ended investigation chills WikiLeaks’ work and anyone caught in its wide net.

In addition, the Justice Department's handling of the Freedom of Information Act (FOIA) and its aggressive tactics in court to keep basic information from journalists and the public has been deplorable, especially given Holder's promise to reform FOIA when he first came into office. Holder is also attempting to expand the controversial 'state secrets' privilege to new lengths, after promising to reform that as well.

The next attorney general, whoever it is, will have a lot of issues on his or her plate. But better respecting the rights of reporters and the First Amendment should be at the top of that list.

Reposted from the Freedom of the Press Foundation

Filed Under: attorney general, eric holder, journalism, press freedom

Tone Deaf NSA Officials Tell Reporter It's Time To Reform The First Amendment

from the how-about-reforming-the-nsa-out-of-existence dept

Daniel Drezner has a fairly incredible short blog post over at Foreign Policy magazine about his experience visiting the NSA as the organization is seeking to ramp up its PR campaign about how it's not actually evil. We've already covered the 60 Minutes debacle, but in many ways this piece is just as enlightening, as he notes just how incredibly tone deaf NSA officials appear to be -- unable to understand why people are upset about what they're doing.

The NSA's biggest strategic communications problem, however, is that they've been so walled off from the American body politic that they have no idea when they're saying things that sound tone-deaf. Like expats returning from a long overseas tour, NSA staffers don't quite comprehend how much perceptions of the agency have changed. The NSA stresses in its mission statement and corporate culture that it "protects privacy rights." Indeed, there were faded banners proclaiming that goal in our briefing room. Of course, NSAers see this as protecting Americans from foreign cyber-intrusions. In a post-Snowden era, however, it's impossible to read that statement without suppressing a laugh.

It might be an occupational hazard, but NSA officials continue to talk about the threat environment as if they've been frozen in amber since 2002. To them, the world looks increasingly unsafe. Syria is the next Pakistan, China is augmenting its capabilities to launch a financial war on the United States, and the next terrorist attack on American soil is right around the corner. They could very well be correct -- except that the American public has become inured to such warnings over the past decade, and their response has been to tell politicians to focus on things at home and leave the rest of the world alone. A strategy of "trust us, the world is an unsafe place" won't resonate now the way it did in the immediate wake of the Sept. 11 attacks.

But, perhaps the most tone deaf of all, was the statement from one NSA official suggesting that it's time to reform the First Amendment, because he's not at all happy about how reporters have covered the NSA recently. As Drezner notes, he's not sure if it's a joke or not, but it really doesn't matter. That seems like something you should not joke about if you're an NSA person, given everything that's going on.

The NSA's attitude toward the press is, well, disturbing. There were repeated complaints about the ways in which recent reportage of the NSA was warped or lacking context. To be fair, this kind of griping is a staple of officials across the entire federal government. Some of the NSA folks went further, however. One official accused some media outlets of "intentionally misleading the American people," which is a pretty serious accusation. This official also hoped that the Obama administration would crack down on these reporters, saying, "I have some reforms for the First Amendment."

It seems that the public might have some reforms for the intelligence community as well. And those would actually be constitutional, unlike what that particular NSA officials had in mind for free speech and the press. There's even more in the Drezner piece that is well worth reading, including the how the NSA was unable to properly manage his own personal information which he had to send them in order to get his pass to come for a visit...

Filed Under: first amendment, free speech, freedom of the press, nsa, nsa surveillance, press freedom, public relations

David Cameron Working To Stop UK Press From Publishing Anything More From Snowden Leaks

from the no-free-press dept

It looks like Glenn Greenwald picked the right time to leave the UK's The Guardian newspaper. Last week, we noted that David Cameron was pushing for an investigation into the paper for publishing stories based on Ed Snowden's leaks, and now Cameron is going even further in his attempt to stomp out any sense of a free press in the UK, threatening to make moves to block UK publications from writing anything else new about as-yet-unreleased Snowden documents. Because that'll stop the outrage.

David Cameron threatened on Monday to act to stop newspapers publishing what he called damaging leaks from former U.S. intelligence operative Edward Snowden.

"If they don't demonstrate some social responsibility it will be very difficult for government to stand back and not to act," Cameron told parliament.

I love that phrase "social responsibility." Because an awful lot of people would argue that the Guardian has demonstrated a hell of a lot more "social responsibility" in publishing the stories they have, revealing the massive overreach of the NSA, GCHQ and others in violating the civil liberties of people around the globe.

Later in his talk, Cameron suggests that he doesn't want to have to take direct action -- which is an implication that he might do exactly that:

"I don't want to have to use injunctions or D-notices (publication bans) or the other tougher measures. I think it's much better to appeal to newspapers' sense of social responsibility," he said.

There's that "social responsibility" phrase again. I don't think it means quite what Cameron seems to think it means. Social responsibility is not being stenographers for the government's point of view. Quite the opposite. You'd think that someone in Cameron's position would understand that.

Filed Under: david cameron, gchq, nsa, press freedom, social responsibility, super injunctions, surveillance, uk