Documents Show SFPD Ignored The Press Pass The Department Had Issued To Brian Carmody In Order To Place Him Under Surveillance

from the whatever-keeps-the-surveillance-going dept

As details continue to come out about the San Francisco Police Department's raid of a journalist's home last year, the more it appears as though there was a concerted effort by the PD to ignore both the First Amendment and the state's journalist shield law.

From the beginning, investigators knew someone from within the police department had leaked a coroner's report to Brian Carmody, a local "stringer." But the department didn't limit itself to tracking down its inside source. It placed Carmody under investigation, targeting his phone records, location data, and, finally, his home. The department's chief, Bill Scott, spent two weeks defending the raid before deciding it was OK to blame officers for actions he explicitly improved.

Five warrants linked to the investigation have been tossed by the courts that issued them. Carmody has received a $369,000 settlement for his rights being violated. And more details continue to come to light, showing the department personnel involved never came anywhere close to operating in good faith.

Last month, it was revealed that the officers sent to raid Carmody's home were instructed to turn off their body cameras. This allowed the PD to write its own narrative of the search without anything more neutral possibly exposing lies or omissions.

Fox affiliate KTVU is continuing to dig into this story and has uncovered even more damning information about the investigation of Carmody and the raid of his home. First, the SFPD was well aware (or should have been) Carmody was a journalist, and that targeting him for surveillance would be problematic and unconstitutional.

While pointing investigators to Carmody, the chief’s office failed to give the investigators a crucial detail: He had a valid press pass.

A reporter does not need a press pass to be protected by the Shield Law. But by issuing Carmody a press pass, the department recognized he was a working journalist.

This may have been an oversight. Or it may have been a deliberate withholding. But either way, the investigation began after the leaked report appeared on a local news station, which should have made it clear journalists were involved at some level and perhaps some due diligence was in order. It's hard to believe the SFPD didn't do an internal search of its own records first to dig up what they could about Brian Carmody before seeking search warrants.

That takes us back to the warrants. Five judges quashed the five warrants they had issued once news came to light that Carmody was a journalist. But there were seven warrants and the first warrants allowed the SFPD to, in essence, go back in time and put officers on Carmody's tail.

Investigators then began writing a series of warrants – seven in all – allowing them access to the officers’ phone records, and Carmody’s geo locations and call information.

The Police Department used the locations to retrace Carmody’s steps around San Francisco in hopes of catching him and his source on video doing the handoff.

This led to two more warrants -- the two that haven't been tossed out by judges. These targeted four places Carmody had visited, including a restaurant and a coffee shop. Video recordings were obtained from all four but investigators were unable to find any footage of Carmody meeting with his police source. When this failed, cops staked out Carmody's home for more than a month before seeking a warrant to search his home.

As for the warrant applications themselves, they were supposed to be reviewed by an assistant district attorney before being submitted to a judge. None of the seven warrants were submitted to the DA's office. Unfortunately, this isn't further evidence of a concerted effort by investigators to illegally target a journalist. This is just standard operating procedure for SFPD officers, who apparently rarely bother to follow the department's rules.

But [Captain William] Braconi wrote that in his nearly two decades as an investigator “rarely if ever” did an assistant district attorney review a search warrant before it was submitted to a judge.

This is a very ugly mess. And it's obviously not the only time the SFPD has broken internal guidelines and state laws to pursue investigations. If they were this comfortable pursuing a journalist over a report one of their own leaked, investigators have undoubtedly abused their power in smaller, less noticeable ways before. The more that's uncovered about the case, the more it appears the city got off pretty cheaply by paying Carmody only $369,000.

Filed Under: 1st amendment, brian carmody, journalists, press pass, raids, search warrant, sfpd

Appeals Court Again Says That The White House Can't Just Remove A Press Pass Because It Didn't Like A Reporter Mocking Seb Gorka

from the not-how-it-works dept

Last summer we explained why it was a clear 1st Amendment and 5th Amendment violation for the White House to remove Playboy reporter Brian Karem's press pass, with no warning, after he got into a small verbal tiff with former White House employee Seb Gorka. Lots of Trump supporting people, who seem wholly ignorant of how the Constitution actually works, were very mad at us for reporting on that, and insisted that it was somehow obvious that the White House could revoke a press pass like that, even in retaliation for a reporter's statements. And yet, just as we predicted, the district court quickly ruled that the White House needed to restore Karem's pass.

Now, nearly a year later, the DC Appeals court has affirmed that decision and made it quite clear that the White House's removal of Karem's pass was unconstitutional. The full ruling is worth reading, and, as with the district court, focuses more on the 5th Amendment due process problems, rather than the 1st Amendment retaliation problems. And just to respond to the same comment that came up multiple times in our comments, no, no one is saying that the White House has to automatically let anyone in to press events. Instead, as the court explains, if the White House is opening up an event to the press, it cannot bar people for "arbitrary" reasons (or for any reasons that violate the 1st Amendment, regarding retaliation for speech).

We began by emphasizing that Sherrill’s claim “[wa]s not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.” Id. at 129. But given that “the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” and given that “[t]hese press facilities are perceived as being open to all bona fide Washington-based journalists,” we held that “the protection afforded newsgathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations omitted). Moreover, “the interest of a bona fide Washington correspondent in obtaining a White House press pass” is not only “protected by the first amendment” but also “undoubtedly qualifies as [a] liberty [interest] which may not be denied without due process of law under the fifth amendment.”

After reciting the details of the verbal encounter between Karem and Gorka, the court notes delves into the 5th Amendment due process problems with Karem's suspension:

Applying that test, we think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of “the magnitude of the sanction”—a month-long loss of his White House access, an eon in today’s news business—that the White House “might impose” for his purportedly unprofessional conduct at the non-press-conference event. Gore, 517 U.S. at 574. True, the Acosta Letter set forth “rules governing future press conferences,” but in that very same letter, the White House expressly declined to adopt “specific provisions for journalist conduct in the open (non-press room) areas of the White House” “in the hope that professional journalistic norms” would “suffice to regulate conduct in those places.” Acosta Letter 1, J.A. 693 (emphasis added). What’s more, although the White House made clear that “failure to abide by” the newly articulated press-conference rules “may result in suspension or revocation of the journalist’s hard pass,” it declined to adopt analogous sanctions for unprofessional conduct at non-press-conference events. Id. Instead, the White House stated that “[i]f unprofessional behavior occur[red] in those settings,” then it would “reconsider this decision”—that is, the lack of formally articulated standards and sanctions—not that it would suspend journalists’ hard passes.

Even assuming the Acosta Letter provided Karem some notice of behavioral expectations “in the open . . . areas of the White House,” id., it failed to put him on notice of “the magnitude of the sanction that [the White House] might impose” for his purported failure to heed any such expectations, Gore, 517 U.S. at 574. To the extent Karem’s “irreverent, caustic” attempts at humor (to use the district court’s language) crossed some line in the White House’s view, those transgressions were at least arguably similar to previous journalistic misbehavior that elicited no punishment at all, let alone a month’s exile. Karem, 404 F. Supp. 3d at 215. In the context of a White House press corps described as an “unruly mob,” id. at 214 (internal quotation marks omitted), Karem’s behavior was not so outrageous as to bring into fair contemplation the unprecedented sanction visited on him.

The White House’s arguments to the contrary are without merit.

In rejecting each of the White House's arguments, the appeals court even calls one such argument "absurd."

Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President, shout racial epithets at a foreign dignitary, or sexually harass another member of the press corps.” Appellants’ Reply Br. 4. But just as “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” Hoffman Estates, 455 U.S. at 495, the White House cannot defend the thirty-day suspension here on the ground that some other, egregious conduct might justify the same sanction. And even if the White House could impose that sanction for such egregious conduct consistent with due process, Karem’s behavior as reflected in the preliminary injunction record fell below that threshold. Notions of professionalism are, after all, context-dependent. Cf. Strickland v. Washington, 466 U.S. 668, 693 (1984) (“[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.”). “[W]ithin the context of such an unruly event” as the Summit, “where jocular insults had been flying from all directions,” Karem, 404 F. Supp. 3d at 215–16, Karem’s statements were not so egregious as to justify suspending his hard pass for thirty days without prior notice.

Of course, the White House was still able to keep Karem suspended for 18 days before the original decision came down, and even this alone might be intimidating to the White House press corps, which was undoubtedly the key reason behind this in the first place.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, press pass, seb gorka

White House Suspends Another Reporter's Press Pass, Once Again, Raising 1st Amendment Concerns

from the not-how-it-works dept

As you'll recall, last year, the White House tried to remove CNN reporter Jim Acosta's press pass over a silly made up controversy claiming that he had "assaulted" an intern in trying to hold onto the microphone while the intern had tried to pull it away. CNN sued and a court sided with them in blocking the White House's action. Soon after, the White House released new rules, that we mentioned left them open to future 1st Amendment challenges.

Well, here we are. On Friday, the White House removed Playboy reporter Brian Karem's press pass, claiming it was about some sort of weird yelling match Karem had with ex-Trump official Sebastian Gorka at Trump's silly social media troll summit back in July. Karem immediately said he'd sue over the removal and his attorney Ted Boutrous has sent a series of letters to White House press secretary, Stephanie Grisham over the last few weeks. The opening of the first one lays everything out pretty nicely.

We write on behalf of our client, Brian Karem, who serves as the White House correspondent for Playboy, in response to your August 2, 2019 letter informing of your "preliminary decision" to suspend his hard pass for 30 days, supposedly "due to [his] conduct at the press event in the Rose Garden on July 11, 2019," and giving him one business day to submit a response before you "make a final decision on the matter." We object to this arbitrary and unfair procedure threatening to deprive Mr. Karem of his constitutionally protected liberty and property interests in his hard pass, which would flatly violate the First Amendment and the Due Process Clause and the principles established by the D.C. Circuit's decision in Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) and many other cases. Your invocation of the Rose Garden event weeks after it occurred and without any notice whatsoever that you were considering taking action against Mr. Karem is the opposite of due process, and is clearly pretext for punishing Mr. Karem based on his viewpoint and the content of his reporting on President Trump.

It's the "arbitrary and unfair procedure" part of the above quote that is most important. The White House can't just cook up reasons to remove someone if the real reason is they don't like his reporting (as was the case with Acosta).

In a later letter, Boutrous points out that Grisham herself has admitted to not following any basic due process, as required by the 1st Amendment:

Your email of last night revealed that you failed to conduct a reasonable investigation before reaching your preliminary decision. Among other deficiencies, you admit that you did not speak to a single witness. You did not speak to Sebastian Gorka, Jim Hanson, or any of the other individuals who are seen on video taunting and/or threatening Mr. Karem. You did not speak to any of the journalists who were standing alongside Mr. Karem in the press pen and observed firsthand what happened. Nor did you speak to Mr. Karem himself, despite his efforts to speak with you. In fact, you claimed you lack evidence that Mr. Karem made any attempt to speak with you. Enclosed with this letter are emails reflecting his efforts.

You have also elected to ignore publicly-available evidence that Mr. Gorka has trumpeted his confrontation with Mr. Karem, bragging that he took on the "fake news industrial complex," as well as evidence that the President himself viewed the events as humorous. All of this information is highly relevant to your decision, yet you have deliberately chosen to ignore it.

After suggesting that Gorka was the one who initiated and escalated the confrontation, while Karem was the one who sought to de-escalate it, Boutrous also notes the following:

The President himself has used far stronger language and imagery. Among other things, he has tweeted an image of himself wrestling a CNN icon to the ground, and stated that a congressman who body-slammed a reporter is "my kind of guy." He has also urged his supporters to "knock the hell" out of protestors at his rallies, and remarked about one protestor, "I'd like to punch him in the face." If the President's statements cannot reasonably be understood as endorsing or inciting violence, the White House cannot possibly deem Mr. Karem's offer to "go outside and have a long talk" as over the line.

None of this seemed to matter. In the official suspension notice, Grisham insists that Karem's comment to go outside and have a conversation was obviously a threatening statement.

It seems likely that Karem will now sue and we'll get yet another court to weigh in on the process by which the President (any President, not just this one...) can remove press passes.

Filed Under: 1st amendment, brian karem, free speech, jim acosta, press pass, stephanie grisham, ted boutrous

Best Reporters On The Supreme Court Forced To Grovel Before Competitors To Prove They're Worthy Of A Press Pass

from the ridiculousness-defined dept

Back in April, we wrote about the travesty of the very best reporters on everything Supreme Court related, SCOTUSblog, still not having a press pass to the Supreme Court. The issue is somewhat complicated, in part because of the seriously arcane credentialing process involved. Basically, the Supreme Court looks kindly on reporters who already are credentialed by the Senate. But the Senate credentialing process involves the "Standing Committee of Correspondents" who get to decide who else to let in. The committee, basically, are journalists who have already been let into the club deciding who else can join them. When you set up a guild that lets you exclude innovative and disruptive players, guess what happens?

While the Senate had allowed a SCOTUSblog reporter, Lyle Denniston, in the past, it revoked that credential and said that it wouldn't give him or SCOTUSblog a new credential. While they don't say why, the main issue seems to be that the blog's publisher is Tom Goldstein, a practicing lawyer who does, on occasion, practice before the Supreme Court. Yet, there's a clear separation between the reporters covering the various cases and Goldstein's legal work. In fact, SCOTUSblog will not cover cases Goldstein's firm is involved in. And no one seems to deny that the reporters who work for the blog do great work.

In an effort that seemed to only highlight the ridiculousness of the situation, the "Standing Committee of Correspondents" decided to hold "a hearing" about the issue, which seemed merely designed to make them look as pompous and out of touch as possible. Or, at the very least, to show what happens when petty people are put in a position of power over others. Goldstein notes that the "hearing" seemed to involve all of their (apparently jealous) competitors on the "Standing Committee" digging up any reasons they could think of to deny them a press pass:

But the Standing Committee seems committed – having previously granted us a credential – to reaffirm its decision revoking our pass.  In listening to our appeal, which the chair labeled a “hearing,” the Committee members carefully divided up materials that they could use in an effort to undermine our qualifications.  (My favorite by far is that, unbeknownst to us, the Gallery’s staff director came to our office to take pictures of our signage and doors.)  No member of the Committee even acknowledged the recognition by others that the blog is engaged in high-quality journalism.  The closest it came was the chair’s firm statement that the Committee had a duty not to bow to “public pressure.”  That seems to miss the point.

It appears to be nothing more than a guild process to exclude competitors.

The main point that critics of SCOTUSblog have, concerning Goldstein's day job, is that publications are supposed to be "editorially independent from any organization that is 'not principally a news organization.'" And, specifically, they are supposed to avoid giving press credentials to someone who may be lobbying Congress. But Goldstein quickly points out that the Committee appears to have no problems violating those rules for other publications that either are controlled by foreign governments and/or large companies:

• Several credentialed organizations are government agencies:  Xinhua News Agency, the official press agency of the People’s Republic of China; Saudi Press Agency, an organ of the Saudi Ministry of Information; Itar-Tass News Agency, the central information agency of Russia;  Akahata, the official paper of the Japanese Communist Party; and Notimex Mexican News Agency, which has an executive editor appointed by the President of Mexico and a governing board of representatives of five government agencies.
• Several credentialed organizations are affiliated with commercial businesses directly related to the subjects they cover:  Energy Daily has several credentialed reporters, and it is owned by a substantial provider of energy consulting services, IHS, Inc.; LRP Publications has credentialed reporters, and also puts on trade shows and conferences; MLEX has credentialed reporters, and provides clients with “Market Insight” and “Predictive Analysis of Regulatory Risk.”

Goldstein wonders how it could be that SCOTUSblog, which is widely respected for its reporting on the Court, somehow creates "a greater risk of entanglement of journalism and other activities than state-sponsored news organizations."

A NY Times article about this quotes someone noting that the whole setup is one of "the fox guarding the henhouse." Though, it's not even clear that's the right analogy. This seems more like petty tyrants using their power to exclude someone who often does their job better than they do. And the whole show trial aspect of forcing SCOTUSblog to attend a "hearing" where a giant stack of "evidence" is presented against them merely confirms the travesty of the whole situation. The members of the Standing Committee of Correspondents should be ashamed of themselves. Just admit the facts and grant SCOTUSblog a press pass.

Filed Under: accreditation, journalism, lyle denniston, press, press pass, scotusblog, senate, standing committee of correspondents, supreme court, tom goldstein

Travesty: Supreme Court (And Senate) Deny SCOTUSblog A Press Pass

from the shameful dept

So we just had a story about a court recognizing that, yes, blogs are a part of the media, and noted how ridiculous it was that this is still an issue in 2014. However, it appears that the Supreme Court is still living in a different century (okay, maybe not a huge surprise, since they still haven't figured out email). If you follow issues around litigation, it's likely that sooner or later you'll read SCOTUSblog, which is (deservedly) the go to source for anything related to anything having to do with Supreme Court cases. On mornings when decisions come out, it's always the first source I check, and I'm hardly alone among legal watchers.

And yet... the Supreme Court has denied SCOTUSblog's request for a press pass based on a stupidly convoluted system for which the Senate is partly to blame as well. According to SCOTUSblog:

SCOTUSblog is not now, and has never been, credentialed by the Supreme Court. The Court’s longstanding policy was to look to credentials issued by the Senate. We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery. Last year, we finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog. We then presented that credential to the Supreme Court, thinking that the issue was resolved.

But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy. The Court has not indicated when that review will conclude.

This is complicated further by the fact that the Senate Press Gallery has now rejected SCOTUSblog's request for a press pass, and also told the blog it will not renew Lyle's press pass -- thereby cutting off the blog to both the Senate and the Court. SCOTUSblog's Tom Goldstein does note that the Supreme Court itself has actually tried to accommodate the blog's requests for public seats, despite not agreeing to give it a press pass. The situation is clearly ridiculous:

All that said, the Senate Press Gallery’s decision to deny us a credential is important to us. We wanted the credential in substantial part because we cover Supreme Court-related matters in the Senate. Most significantly, we do gavel-to-gavel, liveblog coverage of Supreme Court nominations. We also expect to cover hearings related to the Court’s budget. So those efforts are now more difficult.

So we plan to appeal the Senate Gallery’s credentialing decision. We do not have a written list of the reasons for the denial, which makes the process more difficult. Our impression is also that the appeal may go to the same group that denied the application in the first place. If the appeal is denied, then we expect to litigate the issue. We’re now coordinating all those efforts with other groups that kindly have offered to support us.

All in all, the refusal by the Court and the Senate to credential us have always seemed strange. No one seems to doubt that we are a journalistic entity and that we serve a public function. Winning the Peabody and other awards would seem to confirm that. And the Court for years has functionally recognized us, because obviously the overwhelming majority of Lyle’s work is for us. We do not want any kind of special treatment. Credentialing the blog doesn’t give us any special power or recognition; it just makes our jobs incrementally easier. All in all, it doesn’t seem to make sense to impose burdens on us that are greater than those that apply to others who fundamentally do the same thing.

I don't think "strange" is the right word. Shameful works better. Stupid would apply as well.

Filed Under: journalism, journalists, press pass, scotusblog, senate, supreme court

Crowdfunded Stenographer Denied Press Pass To Cover Transcriptless Bradley Manning Trial

from the can't-have-an-accurate-record-now,-can-we dept

The attempts to limit the press during the Bradley Manning trial have been somewhat ridiculous. The press hasn't been allowed to record anything, even though someone clearly did so surreptitiously. Furthermore, there's been no plan for an official court transcript of the proceedings either. About a month ago, the Freedom of the Press Foundation launched a crowdfunding campaign to try to hire their own professional stenographer to attend the trail to make a transcript. They even had some top press publications, including the Guardian, Forbes and the Verge, apply for an extra press pass for the crowdfunded stenographer. The military refused. But, more ridiculously, they claimed it was a space issue, though that's an issue they could easily fix.

The Army received over 350 media applications for the trial, but only granted 70 to be present in the media room. In an emailed statement, the MDW Media Desk stated: “Your understanding of our space limitations based on building fire codes is greatly appreciated.”

In previous hearings, the Army has opened a public overflow theater with live audio and video streaming of the hearing. Additionally, the Army has sole discretion over which room(s) to designate as media rooms – including how many rooms to make available.

A large group of established news organizations -- including the LA Times, NPR, the New Yorker, Fox News, Newsweek, Bloomberg and NY Magazine -- have all asked the military to open up two additional press passes for stenographers (two so that they can overlap while switching shifts). The judge in the case, on Monday, announced that it would be okay for a stenographer to record a transcript using a stenography machine, which is great... except that without a press pass, they still can't get the stenographer in. Thankfully, for Monday, a Bradley Manning supporter with a pass gave it up to the stenographer, but it's somewhat ridiculous that it had to even come to that.

At this point, it really just seems like the Army is being incredibly petty over this case in its desire to limit the details of coverage.

Filed Under: army, bradley manning, freedom of the press foundation, press pass, stenographer, trial