Silha Bulletin Fall 2020 Volume 26 Issue 1
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A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2020 A Message from the Director The Silha Center for the Study of Media Ethics and Law has produced a special report and analysis of media law issues arising from the extraordinary assault on the U.S. Capitol in Washington, D.C. on Jan. 6, 2021. We recount attacks on and detention of working journalists, discuss the First Amendment implications of social media platforms’ decisions to ban President Donald Trump, and consider whether statements by President Trump calling on his supporters to march to the Capitol violate federal laws against incitement to violence, rioting, or advocating overthrow of the government — extremely serious offenses that must meet a high bar prior to prosecution. Future issues of the Bulletin will continue covering these and related events. I would like to thank Postdoctoral Associate and former Bulletin editor Scott Memmel, as well as Program Assistant Elaine Hargrove, for their quick work in preparing this special report. Jane E. Kirtley, Director Silha Center for the Study of Media Ethics and Law Events Surrounding the U.S. Capitol Insurrection Raise Significant Media Law Issues and Questions n Jan. 6, 2021, President Donald Trump spoke at stole laptops, correspondence and personal items from the “March to Save America” rally in Washington, offices, forcing the emergency evacuation of lawmakers and D.C. The rally was held to protest Congress’ staff.” imminent certification of the 2020 Electoral Additionally, at least five individuals died as a result of the College results, in which President-elect Joe Capitol attack, including U.S. Capitol Police (USCP) officer OBiden and Vice President-elect Kamala Harris were elected as Brian D. Sicknick. CNN reported on Jan. 7, 2021 that Sicknick the next president and vice president of the United States. In “was injured while physically engaging with the rioters and his speech, President Trump urged his supporters to march collapsed after returning to his division office.” According to the U.S. Capitol building (Capitol) to protest the Electoral to a USCP statement, Sicknick “was taken to a local hospital College vote count. where he succumbed to his injuries.” The statement added, Later the same day, protests around the Capitol erupted “The entire USCP Department expresses its deepest into chaos as hundreds of President Trump’s supporters sympathies to Officer Sicknick’s family and friends on their forced their way into the Capitol. The insurrectionists, as loss, and mourns the loss of a friend and colleague.” CNN they were referred to by several media outlets around the also noted that several additional USCP officers were injured United States, caused significant property damage and during the Capitol attack. forced members of Congress — who were set to confirm the Air Force veteran Ashli Babbitt was fatally shot by a election results despite opposition from some Republican “sworn USCP employee” as rioters sought to enter the U.S. representatives and senators — to retreat to safety elsewhere House of Representatives Chamber where members of in the Capitol. The Washington Post described in a Jan. Congress were sheltering in place, according to a January 7 8, 2021 article how “[m]embers of the mob scaled walls, USCP press release. The press release read, “As protesters smashed doors and windows, vandalized works of art, and Insurrection, continued on page 3 Inside This Issue Fall 2020: Volume 26, No. 1 1 Events Surrounding the U.S. Capitol Insurrection Raise 31 National and Local News Outlets Face and Address Ethical Significant Media Law Issues and Questions Questions and Dilemmas Cover Story Ethics 10 Ongoing Protests and Confrontations Between the Press 36 Courts Reject Efforts to Block or Impede Publication of and Police Prompt Legal Action, Ethical Debates, and Media Books about President Donald Trump Advocacy Prior Restraint Protests 41 Developments in Two Defamation Lawsuits Against 18 Court Access and Medical Privacy Issues Arise in Wake of Minnesota News Media George Floyd Killing Defamation Access 45 Courts Rule on Defamation Lawsuits Against The New York 22 Justice Ginsburg Passes Away; Authored and Joined Key Times, Fox News, President Donald Trump First and Fourth Amendment Majority and Dissenting Defamation Opinions Supreme Court 51 Ninth Circuit Rules NSA Surveillance Program Violated FISA and Potentially Fourth Amendment 25 Associate Justice Amy Coney Barrett Has "Relatively Light" Privacy Record on First Amendment and Press Law, Legal Experts Say 53 35th Annual Silha Lecture Addresses the Importance of Supreme Court Documentaries and the Need for U.S. Law to Protect Them Silha Center Events 27 Misinformation Concerns Precede and Follow Presidential Election Misinformation SILHA CENTER STAFF JANE E. KIRTLEY SILHA CENTER DIRECTOR AND SILHA PROFESSOR OF MEDIA ETHICS AND LAW JONATHAN ANDERSON SCOTT MEMMEL SILHA BULLETIN EDITOR POSTDOCTORAL ASSOCIATE SARAH WILEY ELAINE HARGROVE SILHA RESEARCH ASSISTANT SILHA CENTER STAFF 2 Insurrection, continued from page 1 and reporters, as characterized by The Washington Post on May 12. President Trump also tweeted on May 15, 2020, were forcing their way toward the House Chamber where “FAKE NEWS IS NOT ESSENTIAL,” quoting a Commack, Members of Congress were sheltering in place, a sworn USCP N.Y. protester filmed by News 12 Long Island reporter Kevin employee discharged their service weapon, striking an adult Vesey during a demonstration criticizing the exemption for female. Medical assistance was rendered immediately, and journalists from New York’s “stay-at-home” order. (For more the female was transported to the hospital where she later information on President Trump’s anti-press rhetoric amidst succumbed to her injuries.” The full press release is available the COVID-19 pandemic, see “Special Report: COVID-19 online at: https://www.uscp.gov/media-center/press-releases/ Pandemic Raises Media Law and Ethics Issues, Challenges, statement-steven-sund-chief-police. and Opportunities” in the Winter/Spring 2020 issue of the Silha Three additional individuals at the protests died of Bulletin.) “medical emergencies,” as reported by CNN. Metropolitan Observers have argued that President Trump’s anti-press Police Department (MPD) Chief Robert Contee told CNN rhetoric has led to violence against journalists. For example, that “[o]ne adult female and two adult males appear to have on Feb. 11, 2019, BBC cameraman Ron Skeans was attacked suffered from separate medical emergencies, which resulted at a rally for President Trump in El Paso, Texas. The BBC in their deaths.” He added, “Any loss of life in the District is reported the next day that Skeans was unharmed, despite the tragic and our thoughts are with anyone “incredibly violent attack,” which BBC Washington producer impacted by their loss.” Eleanor Montague suggested was prompted by the president’s COVER STORY Several important First Amendment references to “fake news” and how the media misrepresented and media law issues and questions him in his remarks prior to the assault. (For more information came to the forefront during the course of the Capitol attack. on the attack of Skeans, see BBC Cameraman Attacked at First, President Trump’s speech at the January 6 “March to Trump Rally in El Paso in “Journalists in the U.S. and Abroad Save America” rally included multiple instances of anti-press Continue to Face Violence and Imprisonment; U.S. Court rhetoric, continuing a trend from throughout his presidency. Holds Syria Liable for Role in Journalist’s 2012 Death” in the First Amendment experts also debated whether the speech Winter/Spring 2019 issue of the Silha Bulletin.) constituted “incitement” of violence, a category of speech that (For more information on President Trump’s anti-press would not receive First Amendment protection under U.S. rhetoric and actions more generally, see “Special Report: Supreme Court precedent. COVID-19 Pandemic Raises Media Law and Ethics Issues, Second, during the attack on the Capitol and surrounding Challenges, and Opportunities” in the Winter/Spring 2020 protests, journalists faced arrests by law enforcement, as issue of the Silha Bulletin, “Federal Judge Orders White well as violence, threats, and equipment damage by President House to Reinstate Reporter’s Press Credential” in the Fall Trump’s supporters. Press advocacy organizations denounced 2019 issue, “White House Revokes and Suspends Hard the attacks on the news media, citing President Trump’s anti- Press Passes Under New Rules” in the Summer 2019 issue, press rhetoric as a contributing factor. “President Trump Continues Anti-Press Rhetoric and Actions” Also on January 6, Twitter and Facebook, among other and “Journalists in the United States and Abroad Face Threats social media platforms, temporarily suspended President of Violence and Incarceration” in the Fall 2018 issue, Five Trump’s accounts, citing posts that violated their rules and Newspaper Staff Members Killed, Two Injured in Shooting guidelines against inciting or promoting violence and/or at Local Maryland Newsroom in “Journalists Face Physical spreading misinformation. Within two days, Twitter had Violence, Other Dangers in the United States and Abroad,” permanently banned President Trump from the platform, and Federal Prosecutors Seize Phone and Email Records of while Facebook extended the suspension of his account New York Times Reporter in Leak Investigation in “Trump through at least the end of his term as president. The moves