Recent police action in Missouri is an affront to journalists and the First Amendment.
Reporters for The Washington Post and The Huffington Post, who were covering the shooting of a teenager and subsequent civil unrest and riots in Ferguson, Missouri, were arrested and otherwise harassed by local police. This “side spectacle” shows that during tragedies and major news events, like riots, the press is at risk.
Published accounts by the reporters do not indicate that they were obstructing or otherwise hindering police investigations or police efforts to suppress the riot. These were legitimate members of the institutional press, not advocates or participants in any political movement. They were journalists. Though the reporters were released without charges, this type of incident nevertheless poses a significant threat to journalists who are on the front lines, whether covering riots here in the United States or wars abroad.
In a country with strong protections under the First Amendment, reporters should not be harassed, no matter how emotionally-charged events may be. The facts about what happened in Ferguson are still being sorted out, and the investigation will likely require intervention by state and federal authorities. But this is a story of national import and the riots are a major component of the story, and should be covered. The press will assume a vital and independent role in telling this story, keeping the public informed and keeping all sides accountable. The press has to be allowed to do its job.
After weighing in on the tragedy and the riots, President Obama concluded, “Here in the United States of America, police should not be bullying or arresting journalists who are just trying to do their jobs and report to the American people on what they see on the ground.”
Let’s hope law enforcement takes a look at the First Amendment next time.
Two political action groups challenging an Ohio law that imposes criminal sanctions for false political campaign statements have legal standing to challenge that law, the United States Supreme Court ruled Monday.
Writing for the court, Justice Clarence Thomas believed that the groups had sufficient fear of injury to merit the declaratory action filed in federal court in Ohio in Susan B. Anthony List v. Driehaus. The petitioners had gone to federal court to determine whether the law was valid under the First Amendment to the Constitution.
The law allows “any person” to bring a complaint before the Ohio Elections Commission regarding “a false statement concerning the voting record of a candidate or public official.” In short, false statements made during a political campaign could expose a speaker to criminal liability. Though a first offense was a misdemeanor, it was punishable with up to six months in jail and up to a $5,000 fine. A second conviction was a fourth-degree felony.
Even if the speech might be false, it was a steep price to pay for political speech, largely considered the most hallowed – and protected – form of speech.
Though eschewing much of the law’s First Amendment and broad free speech implications, the court remanded the case to the Court of Appeals for the Sixth Circuit. So, it will likely not be the last word on the case.
The opinion focuses almost entirely on the constitutional principles of ripeness and standing (whether the petitioners had valid reasons to bring the case). The court analyzed whether the petitioners had real or “imaginary” fear of punishment while exercising their First Amendment rights. Further, the court noted that others intent on expressing opinions on political matters could also face sanctions. The court ruled that the “petitioners have alleged a credible threat of enforcement.”
Because the law targeted and in many ways punished political speech, the court believed there was a viable constitutional interest.
“The Ohio false statement law sweeps broadly and covers the subject matter of petitioners’ intended speech,” the court wrote.
The potential for future application of the Ohio law, coupled with the nature of the law itself, which could allow “a universe of potential complainants,” raised questions. The Court noted that the Ohio Elections Commission, which administered the law, handles between 20 and 80 false statement complaints every year.
The United States Supreme Court will hear arguments Tuesday in two cases that have serious First Amendment implications: one with implications as old as time and politics and the other as modern as the technology involved. First Amendment cases do not dominate the 80 or so cases the court takes every year. Two being argued on the same day seems even rarer.
The first case on the Tuesday argument docket is Susan B. Anthony List v. Driehaus, which challenges an Ohio law that criminalizes false statements about a political candidate or ballot initiative. This controversy goes all the way back to the 2010 congressional re-election campaign of a U.S. Representative from Ohio who had been targeted by conservative political groups, particularly an anti-abortion group that had published statements that the Congressman, Steven Driehaus had voted for tax-payer-funded abortions through his vote for the Patient Protection and Affordable Care Act.
Claiming this was a false statement, Driehaus filed a complaint with the Ohio Elections Commission, invoking the controversial law. This led to a hearing and ultimately a constitutional challenge by SBA.
The law, which includes actual criminal sanctions of up to six months in jail and up to $5,000 in fines also includes procedural mechanisms that can also create the threat of sanctions.
SBA argues this restraint and threat of restraint on speech is blatant violation of the First Amendment. The lower court, the Sixth Circuit Court of Appeals, did not entirely clear up the messy procedural conflicts.
Surprisingly, as the SBA brief to the Supreme Court points out, Ohio is not alone with these types of false political speech statutes – nearly one-third of the states have them. SBA’s brief to the court makes several compelling arguments for protecting even false speech in political campaigns, equating this to a “chilling effect” on political speech. SBA also questions whether a law like this even has any efficacy. Most succinctly, SBA wrote: “Speakers should not have to risk criminal penalties to participate in the marketplace of ideas, particularly the political marketplace.”
For its part, the Ohio Attorney General Michael Dewine, makes mostly procedural arguments invoking constitutional doctrines of ripeness, arguing SBA did not incur “sufficient” injury and that its arguments on threat of sanction are too speculative to merit constitutional review.
Meanwhile, more than two dozen organizations lined up to support SBA with amici briefs, perhaps most notably the political humorist P.J. O’Rourke, whose brief’s question presented dripped with satire: “Can a state government criminalize political statements that are less than 100 percent truthful?”
As old as political mudslinging might be, the second case on Tuesday’s docket is as modern as they come. ABC v. Aereo pits the broadcast television networks against a start-up website which delivers the same content available in a broadcast region, except through an online subscription service.
At issue here is whether the U.S. Copyright Act’s definitions of retransmission of signals can be applied to the service which it compares to a personal DVR for broadcast signals that are collected via individualized mini-antennas. The broadcast programs are then available for playback by the subscriber.
Aereo’s briefs and arguments at the lower courts say this is no different than the way consumers in the late 1970s through the 1980s used VCRs to record shows for playback later. It is also akin to modern DVRs, which are used by 45 percent of American households. In essence, Aereo says that the litigation amounts to a war on cloud technology.
The broadcasters, on the other hand, believe that this subscription service robs them of revenues because Aereo is unfairly and without license retransmitting its programming without compensating them. A broadcasting executive at a recent communications law conference at Syracuse University College of Law said this was the biggest copyright case of the century and could redefine broadcasting.
“The broadcast television industry has invested billions of dollars producing, assembling, and distributing entertainment and news programming in reliance on this legal system. Yet Aereo has built an entire business around exploiting that copyrighted content – and has done so without obtaining permission from copyright owners or paying anyone a penny,” ABC argued in its brief.
The arguments are Tuesday morning and the Court will rule by the end of June. Stay tuned.
This is Sunshine Week, a week dedicated to shining light on public information and the workings of government. An homage to Supreme Court Justice Louis Brandeis’s famous statement that sunshine is the best disinfectant, press rights groups, open government advocates and regular citizens have been marking this week since 2005.
Initially, the mid-March celebration, if you want to call it that, was promoted on March 16, the birthday of James Madison, the principal writer of the First Amendment and an advocate for a free, vibrant press.
The American Society of News Editors (ASNE) founded Sunshine Week, but it has expanded with support from news organizations and a host of other press rights groups including the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and the John S. and James L. Knight Foundation. The Tully Center for Free Speech supports Sunshine Week.
ASNE also prepared a Sunshine Week Open Government Proclamation, which urges government entities to be more open with regard to access to public records.
In part, the proclamation states: “Whereas, James Madison, the father of our federal constitution, wrote that ‘consent of the governed’ requires that the people be able to ‘arm themselves with the power which knowledge gives’”
The proclamation also speaks to the trust between citizens and the government, especially when it comes to public records and transparency of information.
Freedom of information, as some of the Sunshine Week literature notes, is a non-partisan issue. It also spans government entities — villages, town councils, city councils, school boards, state universities, county, state and federal agencies and other government agencies. The important work of government requires these agencies maintain records and allow the public to review them. The public has a right to know and even a duty to ask.
But that does not mean the information is also readily available all the time. Every state and the federal government has freedom or information laws, which require the government to release information upon request. Of course, there are legitimate exemptions to these laws, defined in the statutes. Sometimes officials interpret the exemptions too broadly and sometimes they simply ignore the law.
This can be a problem. The National Freedom of Information Coalition and the Better Government Association in 2007 reported that 38 of the 50 states received an F for failing to adequately comply with public records requests under the respective state laws. Only two states – Nebraska and New Jersey – even earned a B.
But another report, 2010’s Access Across America, sponsored by the Society of Professional Journalists, found while law enforcement agencies appear to be tighter and tighter with public information, journalists across the country are not asking enough government agencies for records.
All over the country, journalists and press advocacy groups are marking the week with discussions on public issues, speeches and exercises to challenge government agencies to be more open. Perhaps the best way to celebrate Sunshine Week is to simply think about public information, and if you happen to be a journalist, to seek and use public information for your stories.
With many eyes on Sochi Winter Olympics, Russia continues a free speech crackdown.
The Olympics starting today in Sochi will be covered by 2 800 journalists. The number includes a few dozens of Russian sports reporters from RIA Novosti, whose future after the Olympics is very uncertain.
The biggest Russian news agency RIA Novosti got “liquefied” in December 2013 with President Putin’s decree. The decree was published on the Kremlin’s website and shocked employees, management and even CEO of the agency. The decree states that the purpose of closing is “economy” and reformatting. Experts say this is yet another step in the crackdown on civil rights in the country, and the agency is “punished” for its liberal views. The agency was given three months to be reorganized. Therefore, right after the Olympics, journalist will face some dramatic changes.
“This step is another one in the series of changes of Russian news landscape that, it seems, points out at the tightening of the governmental control in the media sector that is quite regulated already,” it was said on the English version of the Ria Novosti website that normally copies the Russian version. This time, the Russian version, however, didn’t have the same message. Shortly after the message was quoted by other media, it was taken down from the website.
According to Putin’s decree, Ria Novosti is to be transformed into the new agency called Russia Today that would provide news about Russia for foreign audience. “Restoring a fair attitude to Russia as an important country in the world with good intentions – it is the mission of the new structure,” says the appointed CEO of the new agency Dmitriy Kisilev. In other words, the purpose of Russia Today is propaganda or, as it called in the 21st century, news subsidies.
In Russia, Kiselev’s name rings the bell: his pro-government statements have earned him a reputation as a “Kremlin soapbox.” Instead of going on and on about his loyalty to the government, it is better to quote him once to get the idea.
“I believe that gays should not only be fined for promoting homosexuality among young adults. They need to be banned from donation of blood, sperm, and their hearts, in the case of a car accident, should be buried or burned as unfit to continue someone’s life,” Kiselev commented on the Russian notorious anti-gay propaganda law.
It is still unclear how the agency will be reorganized and what is to happen to its assets: developed infrastructure, subscriptions from hundreds of businesses and media outlets, network of regional and foreign correspondents, 40 websites on 22 foreign languages. The agency is given three months for reorganization.
It is also unknown what is to happen with thousands of agency’s employees. Even the CEO Svetlana Mironyuk didn’t see it coming, according to her own words.
“Sorry those whom I couldn’t protect. I am really hurt,” said Mironyuk tearfully the day the decree was published.
Employees expressed their same level of frustration on social media. However, after two days Mironyuk changed her position and insisted that the employees should not comment on the closure, even on social media.
On the agency’s corporate portal, she posted a statement saying that everyone should comply with the president’s decisions.
“You work in the federal media and Ria Novosti’s main stakeholder is Russian Federation. We are required to comply with federal leaders’ decrees. I also ask you not to react to provocative calls on social media for so called ‘support actions’ for Ria Novosti employees. Those, who organize them, are avid provocateurs and are interested in destabilizing the work of the agency,” said (ex)-CEO in the statement.
Some employees used social media to post notes of help to find a new job. “They ask us to stay and work for the new company, but I would never stay. It will be hard to go from liberal to pro-government in one day. Don’t want to get this propaganda watermark on my forehead for the rest of the career,” says the agency’s editor who asked to be anonymous.
Ria Novosti is appointed to be the national Olympic Games host-agency. “The country will see the Games with Ria Novosti’s eyes”, said the website banner long time before the opening ceremony. Right after the Games, in March 2014 these eyes will be shut.
Another “celebrity” has put his foot in his mouth and is being punished for saying something that some people find offensive. Phil Robertson, one of the guys from the “Duck Dynasty” show, made some homophobic comments in an interview and it has totally blown up.
Just to spread the wealth, he followed it up with some racist comments, too.
The A&E television network suspended him but the show will most likely go on. Now everyone from activists to Sarah Palin are chiming in. There have been social media protests and petitions both denouncing and supporting him.
Admittedly, I have never seen “Duck Dynasty” and I do not plan to. As far as I can tell, from my tangential absorption of pop culture, it’s a show about guys in flannel who grow long beards and go hunting. Maybe this is part of our problem.
The “Duck Dynasty” controversy raises two important questions: 1) should we be surprised that this guy harbors offensive beliefs? and 2) why do we care what he thinks in the first place?
The controversy also provides an important example of how we as a society deal with speech that offends. And it’s another lesson in the beauty of independent media and the hazards of our pop culture-driven society.
If we want to play the blame game, there is plenty of blame to go around, too. In our zeal to find entertainment (and in television executives’ desire to produce cheap entertainment) we catapult people with no real talent into prominent players in society. The list of reality television stars who speak solely to shock or offend is as long as the list of reality television shows.
This is not to say that bona fide entertainers are immune from foot-in-mouth disease. From actors (recently Alec Baldwin) to athletes to politicians, the fastest way to the expressway of fame and riches seems to be saying outrageous or offensive things.
This formula can also backfire. Now that the “Duck Dynasty” guy is exposed for what he really is, the debate has begun. The counter attack is on, and the content-starved 24-hour news behemoths and talk shows which thrust this guy into the spotlight are now filling time criticizing his offensive speech. There is almost a self-righteous indignation among television news reporters telling the world of his offensive and politically-incorrect beliefs. Yet, recently the networks were tripping over themselves to get the “Duck Dynasty” guys on their own shows.
In the long-run, this controversy does not rank up there with great debates about important public policy issues. It is an easy story to tell with colorful characters.
One of the great things about our independent media is its ability to decide what is news or entertainment. Even though the free market often drives this, we are also engaged in the marketplace of ideas.
As the great Supreme Court Justice Oliver Wendell Holmes famously wrote, the best test of truth is its power to compete in the marketplace of ideas. He added that society confronts “imperfect knowledge” every day.
There seems to be more and more “imperfect knowledge” entering the marketplace every minute. Some of us participate in the debate and some of us watch on the sidelines. And then someone else does something outrageous and we all forget and move onto the next controversy.