A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2018 Facebook, Google Fail to Protect Users’ Data; Tech Companies and Federal Government Pursue Federal Data Privacy Frameworks hroughout 2018, social network platform Facebook them that user profi le data would be collected for academic was the target of investigations and widespread purposes. Kogan’s data collection began in 2014, and only about criticisms over allegations that it failed to adequately 270,000 Facebook users consented to sharing their Facebook protect users’ data. The scrutiny began in March profi le data with the app. However, the app also harvested 2018 after several news outlets reported that data from profi les of the users’ friends, even though the friends TFacebook was aware that Cambridge Analytica, a political data had not consented to data collection. Ultimately, more than 87 fi rm connected to President Donald Trump’s 2016 campaign, million raw data profi les were shared with Cambridge Analytica. had gained unauthorized access to personal information of Both The New York Times and The Observer reported that millions of Facebook users in 2015. In the wake of the reports, Cambridge Analytica, which had received substantial funding lawmakers and regulators in the United States and abroad from Republican donor Robert Mercer, planned to use the data opened investigations into why Facebook had waited until 2018 to develop comprehensive psychographic profi les of individuals to inform its users that their data may have been improperly with the intent to infl uence voting behaviors. accessed. Facebook CEO Mark Zuckerberg was also asked to In a March 16 blog post, Facebook announced that the appear before Congressional committees to answer lawmakers’ company had suspended Cambridge Analytica and the SCL questions about his company’s privacy missteps and tech Group from the social media site, as well as Kogan and companies’ growing reach into people’s daily lives. former Cambridge Analytica employee turned whistleblower Later in 2018, Facebook and Google faced criticism over Christopher Wylie for violations of Facebook’s terms of service. separate privacy incidents. On September 28, Facebook “Although Kogan gained access to this information in a legitimate announced that a security attack affected the data of over 50 way and through the proper channels that governed developers million user accounts. On October 8, Google announced that the on Facebook at the time, he did not subsequently abide by company had previously discovered and remedied a software our rules. By passing information on to a third party, including bug that allowed third party developers access to the personally SCL/Cambridge Analytica and Christopher Wylie of Eunoia identifi able information of as many as 500,000 Google+ users, Technologies, he violated our platform policies,” Facebook including their names, email addresses, ages, occupations, and Vice President and Deputy General Counsel Paul Grewal wrote. relationship status. “When we learned of this violation in 2015, we removed his app Meanwhile, tech companies, the Trump administration, and from Facebook and demanded certifi cations from Kogan and a U.S. Representative each took different actions related to all parties he had given data to that the information had been adopting a new federal law or framework protecting internet destroyed. Cambridge Analytica, Kogan and Wylie all certifi ed to users’ privacy and security online, prompting support from some us that they destroyed the data.” observers and concerns from others. In a March 17 update to its initial blog post, Facebook pushed back against reports that Cambridge Analytica’s access to social Political Data Firm Improperly Obtained Data From media users’ information should be considered a data breach. Millions of Facebook Users Rather, Facebook maintained that Kogan obtained information On March 17, 2018, The New York Times and The Observer of from users who chose to use his app and provided consent. London reported that Cambridge Analytica, a subsidiary of the “People knowingly provided their information, no systems were British based political data analysis company SCL Group, had infi ltrated, and no passwords or sensitive pieces of information harvested personal data from more than 50 million Facebook were stolen or hacked,” Grewal wrote. users without permission. Cambridge Analytica obtained the data The reports that Cambridge Analytica had improperly from a Facebook app called “thisisyourdigitallife,” developed by accessed millions of Facebook users’ data prompted Cambridge University researcher Aleksander Kogan. The app condemnation of the social media platform in the United States paid Facebook users to complete a personality quiz and informed Privacy, continued on page 3 Inside This Issue Fall 2018: Volume 24, No. 1
1 Facebook, Google Fail to Protect Users’ Data; Tech 45 Stearns County Releases State Documents from the Companies and Federal Government Pursue Federal Data Wetterling Investigation Privacy Frameworks Privacy Cover Story 47 Ninth Circuit Ruling and Federal Lawsuit Target U.S. 9 President Trump Continues Anti-Press Rhetoric and Actions Customs and Border Protection for First and Fourth First Amendment Amendment Violations Law Enforcement 17 Journalists in the United States and Abroad Face Threats of Violence and Incarceration 51 Federal Judge Indicates the Public and the Press Have First Reporters in Danger Amendment Right to Witness All Portions of California Executions 23 President Trump Prevails in Two Federal Courts’ First Access Amendment Rulings, Faces New First Amendment Lawsuit First Amendment 52 Defamation Cases Continue for Right-Wing Radio Host and BuzzFeed; Former Political Candidates Bring Defamation 28 First Amendment Coalition Sues Department of Justice Lawsuits Over Secret Collection of Journalist’s Telephone and Email Defamation Records FOIA 58 Ninth Circuit Declines a Second Look at the Monkey Selfi e Case 30 Brett Kavanaugh Sworn In as the 114th U.S. Supreme Court Copyright Justice Supreme Court News 59 Fourth Circuit Allows Lawsuit Targeting North Carolina Ag-Gag Law to Continue; District Court Rules Wyoming Law 34 Repeal of Net Neutrality Rules Continues to Face Legal Unconstitutional Uncertainty Ag-Gag Laws Net Neutrality 62 33rd Annual Silha Lecture Addresses the Free Speech
38 Investigations, Prosecutions, and Sentencing Continue In Implications of the #MeToo Movement Goverment Leak Cases Silha Center Events Leak Investigations
43 Trump Administration Threatens Regulation of Social Media Companies and Google for Alleged Political Bias Tech Censorship
SILHA C ENTER S TAFF
JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND S ILHA P ROFESSOR OF M EDIA E THICS AND L AW
SCOTT M EMMEL SILHA BULLETIN E DITOR
KIRSTEN N ORDSTROM SARAH W ILEY SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT
CASEY C ARMODY ELAINE H ARGROVE FORMER S ILHA R ESEARCH A SSISTANT SILHA C ENTER S TAFF
2 Privacy, continued from page 1 and we need to know that users can trust Facebook. With the and abroad. Given widespread concerns that foreign countries information we have now, our trust has been broken.” used Facebook to meddle in American elections, many critics Facebook also faced challenges and criticisms over its expressed alarm that the data had been collected by a foreign handling of users’ data in the individual litigation realm. On political consulting company. In a March 18 statement to The April 9, Bloomberg BNA reported that the Cambridge Analytica Washington Post , U.S. Sen. Amy Klobuchar (D Minn.) called on scandal had prompted at least 18 lawsuits against Facebook Facebook CEO Mark Zuckerberg to appear before Congress. throughout the United States. The lawsuits, fi led by users “They say ‘trust us,’ but Mark Zuckerberg needs to testify before and investors, levied several accusations against the social the Senate Judiciary Committee about what Facebook knew media company, ranging from alleged privacy violations, user about misusing data from 50 million Americans in order to target agreement breaches, consumer fraud, unfair competition, political advertising and manipulate voters,” Sen. Klobuchar said. negligence, securities fraud, and racketeering. Attorney Marc On April 10, in response to the Cambridge Analytica Melzer told Bloomberg BNA on April 9 that the wide ranging revelations, Sens. Richard Blumenthal (D Conn.) and Ed Markey lawsuits would require Facebook to proceed carefully. (D Mass.) introduced the Customer Online “Facebook’s having to fi ght on multiple fronts, with potentially Notifi cation for Stopping Edge Provider confl icting strategies and obligations, is what will make this COVER STORY Network Transgressions (CONSENT) ‘litigation swarm’ problematic,” Melzer said. Act. The bill would require an online Beyond U.S. borders, lawmakers and data privacy regulators service, such as Facebook, to provide information to consumers announced that they too would investigate Facebook’s failure about data collection, use, and sharing processes. The bill also to prevent Cambridge Analytica from improperly obtaining would require that online services obtain opt in consent from users’ data. The UK Information Commissioner’s Offi ce (ICO) users before using, sharing, or selling consumer data and would compel companies to develop data storage protections so that “Facebook has made promises about individuals cannot be identifi ed. The CONSENT Act identifi ed the users’ privacy in the past, and we need Federal Trade Commission (FTC) as the primary agency tasked to know that users can trust Facebook. with enforcing the new rules. The full text of the bill is available online at: https://www.congress.gov/bill/115th congress/senate With the information we have now, our bill/2639/text. As the Bulletin went to press, the bill remained trust has been broken.” in the U.S. Senate Committee on Commerce, Science, and Transportation. — National Association of Attorneys General Additionally, on March 26, the FTC formally announced that it was investigating whether Facebook’s failure to secure users’ data from unauthorized collection violated a 2011 consent announced on March 19 that it planned to investigate “the decree barring the company from making deceptive claims about use of personal data for political campaigns,” which included its data privacy practices. The 2011 consent decree required “the acquisition and use of Facebook data.” On July 10, the Facebook to obtain affi rmative consent from users before ICO announced that it would issue a £500,000 (approximately making changes to the site that would override users’ privacy $644,000) fi ne against Facebook for failing to adequately protect preferences. “The FTC is fi rmly and fully committed to using all users from Cambridge Analytica’s improper data collection and of its tools to protect the privacy of consumers. Foremost among the lack of transparency regarding how others may have also these tools is enforcement action against companies that fail to harvested user data without consent. The fi ne was announced honor their privacy promises . . . or that engage in unfair acts as part of an ICO report on possible misuse of personal social that cause substantial injury to consumers in violation of the FTC media data during the UK’s referendum on whether to retain Act,” FTC Bureau of Consumer Protection acting director Tom membership in the European Union (EU), also known as Pahl wrote in the March 26 press release. “Companies who have “Brexit.” The £500,000 fi ne was the maximum amount that could settled previous FTC actions must also comply with FTC order be levied against Facebook under the UK’s now defunct 1998 provisions imposing privacy and data security requirements. Data Protection Act, as the company’s actions had taken place Accordingly, the FTC takes very seriously recent press reports prior to the EU’s General Data Protection Regulation (GDPR) raising substantial concerns about the privacy practices of going into effect in May 2018 and the GDPR was adopted by the Facebook. Today, the FTC is confi rming that it has an open EU in Spring 2016 to replace the previous framework, as well as non public investigation into these practices.” provide greater protection for EU citizens’ data privacy rights. Besides the FTC, several state attorneys general announced (For more information on the GDPR, see “The United States, that they would seek more information from Facebook about its the European Union, and the Irish High Court Wrangle Data failures to prevent Cambridge Analytica from collecting users’ Privacy Concerns” in the Fall 2017 issue of the Silha Bulletin and data. In a March 26 open letter signed by 37 state attorneys Adopted EU General Data Protection Regulation Establishes general, the National Association of Attorneys General wrote ‘Right to Erasure’ in “Right to Be Forgotten Continues to Create that it was calling on Facebook to provide several answers about Challenges for Online Entities” in the Summer 2016 issue.) its data protection and privacy policies. “These revelations raise On Oct. 25, 2018, the ICO offi cially levied the £500,000 fi ne. many serious questions concerning Facebook’s policies and According to the ICO, the fi ne would have been far higher had practices, and the processes in place to ensure that they are Facebook’s actions taken place after the GDPR took effect, followed,” the offi cials wrote. “Even with the changes Facebook including a maximum fi ne of £17 million or four percent of has made in recent years, many users still do not know that their global turnover, whichever is higher, according to the Associated profi le — and personal data — is available to third party vendors. Press (AP). In an October 25 statement, ICO Commissioner Facebook has made promises about users’ privacy in the past, Privacy, continued on page 4 3 Privacy, continued from page 3 this feature.) If you had managed to make Cambridge Analytica scandal, such as your way through a bewildering array of whether Facebook censored conservative Elizabeth Denham said, “We considered option, you might have even discovered speech, how it policed “hate speech,” and these contraventions to be so serious we how to turn the feature off,” Tufekci the racial diversity makeup of Facebook’s imposed the maximum penalty under the wrote. “This wasn’t informed consent. leadership and staff, among other previous legislation.. . . The fi ne would This was exploitation of user data and subjects. inevitably have been signifi cantly higher user trust” (emphasis in original). Throughout his testimony, Zuckerberg under the GDPR.” She added, “One of our In response to mounting criticism, apologized for Facebook’s failures and main motivations for taking enforcement CEO Mark Zuckerberg posted to his own said that his company would attempt to action is to drive meaningful change public Facebook page that he planned to do better in the future. “We didn’t take a in how organisations handle people's take steps, including auditing thousands broad enough view of our responsibility, personal data.” of apps, to address the social media site’s and that was a big mistake. And it was A Facebook spokesperson said in a failure to prevent third party applications my mistake, and I’m sorry,” Zuckerberg separate statement, “We are currently from improperly harvesting users’ data. said. “I started Facebook, I run it, and I’m reviewing the ICO’s decision. While we “We have a responsibility to protect responsible for what happens here.” The respectfully disagree with some of their your data, and if we can’t then we don’t Facebook CEO also acknowledged that fi ndings, we have said before that we deserve to serve you. I’ve been working the company had failed on several fronts. should have done more to investigate to understand exactly what happened and “It’s clear now that we didn’t do enough claims about Cambridge Analytica and how to make sure this doesn’t happen to prevent these tools from being used taken action in 2015.” The spokesperson again,” Zuckerberg wrote. “The good for harm,” Zuckerberg told the senators. added, “We are grateful that the ICO news is that the most important actions to “That goes for fake news, foreign has acknowledged our full cooperation prevent this from happening again today interference in elections, and hate speech, throughout their investigation, and we have already taken years ago. But we as well as developers and data privacy.” have also confi rmed they have found no also made mistakes, there’s more to do, Zuckerberg also pushed back against evidence to suggest UK Facebook users’ and we need to step up and do it.” claims that users have little control over data was in fact shared with Cambridge On March 28 Facebook unveiled a how their data is collected and used on Analytica.” new centralized system that would offer Facebook. In responding to questions Data privacy advocacy groups and users greater control over their privacy about Facebook’s data collection activists also joined the chorus of and security settings. The New York processes being akin to surveillance, criticisms directed at Facebook. In a Times reported that the new system the CEO said that there were signifi cant March 23 post on the American Civil would provide all of Facebook’s privacy distinctions. “The difference is extremely Liberties Union’s (ACLU) “Free Future” and security options on a single page. clear, which is that on Facebook you blog, ACLU of California Technology & Previously, users would need to navigate have control over your information,” Civil Liberties Director Nicole Ozer and to about 20 different sections and pages Zuckerberg said. “The content that you ACLU of Northern California Technology to make changes to their privacy and share, you put there.. . . The information and Civil Liberties Project Policy Attorney security settings. The Times noted that that we collect, you can choose to have Chris Conley argued that Facebook Facebook had begun development on the us not collect. You can delete any of it, has consistently failed to protect users’ centralized privacy settings page in 2017, and of course, you can leave Facebook privacy. “There’s been some debate over but sped up its deployment in the wake of if you want.. . . I know of no surveillance whether this is a ‘data breach,’ but for the Cambridge Analytica scandal. organization that gives people the option the most part that is a red herring,” they Less than a month after The New to delete the data that they have or even wrote. “If anything, this is arguably worse York Times and The Observer stories know what they’re collecting.” than the result of an inadvertent technical about Cambridge Analytica, Zuckerberg As for the scandal that prompted the failure. Instead, it was a predictable appeared before Congress to answer hearings, Zuckerberg placed much of the outcome of the choices that Facebook has lawmakers’ questions about Facebook. blame on Cambridge Analytica and Kogan made to prioritize the bottom line over The CEO appeared before a joint session for violating Facebook’s terms of service. user privacy and safety.” of the Senate Judiciary and Commerce, “When we heard back from Cambridge In a March 19 op ed for The New York Science, and Transportation Committees Analytica that they had told us that they Times , University of North Carolina on April 10 and a single session of the weren’t using the data and deleted it, we (UNC) School of Information and Library U.S. House of Representatives Energy considered it a closed case,” Zuckerberg Science Professor Zeynep Tufekci and Commerce Committee on April 11. said. “In retrospect, that was clearly a maintained that Facebook regularly During two days of testimony, Zuckerberg mistake. We shouldn’t have taken their disregards privacy concerns. “Despite faced a range of questions on topics word for it. We’ve updated our policy to Facebook’s claims to the contrary, including whether Facebook adequately make sure we don’t make that mistake everyone involved in the Cambridge informs users about how their data is again.” Analytica data siphoning incident did not used, whether users actually understand Zuckerberg added that Facebook give his or her ‘consent’ — at least not in how their data is used, and the extent would be investigating whether other any meaningful sense of the word. It is to which Facebook collects data about companies deploying applications on the true that if you found and read all the fi ne individuals who do not have a profi le site had acted improperly. “[Facebook print on the site, you might have noticed account, among other privacy related will be] investigating many apps, tens that in 2014, your Facebook friends had topics. Some lawmakers also took the of thousands of apps, and if we fi nd the right to turn over all your data through opportunity to question Zuckerberg on any suspicious activity, we’re going to such apps. (Facebook has since turned off issues unrelated to data privacy and the conduct a full audit of those apps to 4 understand how they’re using their data Privacy, Technology and the Law, argued or Instagram,” Facebook said in a July and if they’re doing anything improper,” that any sweeping legal reforms regarding 20 statement. “We take these allegations Zuckerberg said. “If we fi nd that they’re data privacy faced signifi cant challenges. seriously, and have suspended the apps doing anything improper, we’ll ban them “Mark Zuckerberg promises that while we investigate.” from Facebook and we will tell everyone Facebook can do better to protect our Ultimately, Facebook’s inability to affected.” privacy. Three times during his testimony put to bed its data privacy missteps Although many agreed that the before Congress[,] . . . he used the same and critics’ subsequent concerns may Facebook CEO deftly handled his fi rst example: Face recognition technology, be indicative of the problems facing appearance before Congress, several he explained, should require ‘special the evolving digital media landscape as observers suggested that the substance consent’ from users. He left out a key fact: a whole. In an August 6 commentary of Zuckerberg’s responses to questions This week, lobbyists paid by Facebook for the “Hard Questions” series on the was often lacking and misleading. In an are working with Illinois lawmakers Facebook “Newsroom” blog, former FTC April 12 column, Washington Post tech backed by Facebook to gut the state’s face Commissioner Terrell McSweeny argued columnist Geoffrey A. Fowler disputed recognition privacy law, the strongest in that a larger discussion about consumer Zuckerberg’s arguments that users have the nation,” Bedoya wrote. “This should privacy and data sharing on all social control over their data. “Whenever he make us very skeptical about any calls media sites is needed now more than was questioned why Facebook collects for a broad, European style privacy law ever. “Most of us are now familiar with so much data, he wheeled out: ‘You have that would apply across technologies and the grand bargain of our digital economy. control over your information.’ That’s like platforms. We cannot underestimate the We enjoy the benefi ts of the innovative saying anyone can control a 747 because tech sector’s power in Congress and in products and services available to us, it has buttons and dials. Many pilots even state legislatures. If the United States tries often for free, in exchange for our data. opt for autopilot,” Fowler wrote. “Yes, to pass broad rules for personal data, that We experience the pleasure and ease they when you publish a photo or post on effort may well be co opted by Silicon bring to our lives when we download apps Facebook, you can set an audience — just Valley, and we’ll miss our best shot at for work, entertainment, transportation, friends or public. (There’s a drop down meaningful privacy protections.” food — almost anything. For the most menu that says ‘Who should see this?’) On July 2, The Washington Post part, we don’t dwell on who has our data But Zuckerberg acts like keeping your reported that several federal agencies and how it’s being used. That is, until cousin from seeing photos of your had partnered to investigate Facebook’s something unexpected occurs that frays escapades in Cancun is the end of the data actions and statements regarding our trust and calls into question whether challenge. It’s not.” Cambridge Analytica. Specifi cally, offi cials consumers are bearing too much risk in In an April 11 post on “Deeplinks,” from the Federal Bureau of Investigation the deal,” McSweeny wrote. “For years Electronic Frontier Foundation (EFF) (FBI), the Securities and Exchange privacy experts have rightly warned researcher Gennie Gebhart agreed that Commission (SEC), the Federal Trade that consumers relinquish too much Zuckerberg oversold the idea that users Commission (FTC), and the Department information with too little understanding could have widespread control over of Justice (DOJ) joined forces to of how it’s used and limited recourse their data on Facebook. “Zuckerberg’s investigate what Facebook knew about when it’s mishandled. Under the current insistence that users have complete Cambridge Analytica’s unauthorized data US data protection framework, so long as control is a smokescreen. Many members collection in 2015 as well as why the a person is properly notifi ed and consents of Congress wanted to know not just company did not reveal more information to how their data will be used, nothing how users can control what their friends to its users and investors. As the Bulletin more is required. Now this framework and friends of friends see. They wanted went to press, the agencies had not is being challenged — in the US and to know how to control what third party publicly announced any developments in elsewhere — and one of the central issues apps, advertisers, and Facebook itself their probe of Facebook. in the global discussion about privacy are able to collect, store, and analyze. After the announcements of is how much control consumers should This goes far beyond what users can see coordinated investigations and fi nes, have over how their data fl ows. This on their pages and newsfeeds,” Gebhart Facebook appeared to revise how it conversation is long overdue.” wrote. “Facebook’s ethos of connection was handling data privacy concerns. and growth at all costs cannot coexist On July 20, The Wall Street Journal 29 Million Facebook Users Have with users’ privacy rights. Facebook reported that Facebook announced Information Hacked in September operates by collecting, storing, and it was preemptively suspending data 2018 Security Breach making it easy to fi nd unprecedented analytics fi rm Crimson Hexagon ahead On Sept. 28, 2018, Facebook amounts of user data. Until that changes of a privacy related audit of the fi rm’s announced that a security attack in a meaningful way, the privacy concerns data collection, storage and sharing compromised the data of almost 50 that spurred these hearings are here to practices. Crimson Hexagon, which has million user accounts, including exposing stay.” a long standing data sharing partnership their names, phone numbers, hometowns, Others warned Congress to tread with Facebook, collects large amounts and genders, among other profi le carefully after many lawmakers called of data from Facebook users’ who have information. After further investigation, for greater regulation of the tech industry made their information publicly available, the company reduced the number of throughout Zuckerberg’s testimony. In according to The Wall Street Journal. affected accounts to 29 million, which is an April 11, 2018 op ed for The New York Facebook said the suspension was still believed to be the largest data breach Times , Alvaro M. Bedoya, a Georgetown necessary to protect its users. “We don’t in Facebook’s history, according to The Law professor and former chief counsel allow developers to build surveillance New York Times on September 28. to the Senate Judiciary Subcommittee on tools using information from Facebook Privacy, continued on page 6 5 Privacy, continued from page 5 GDPR, told CNBC on October 16 that users’ data was accessible, Google approximately three million Europeans itself has no evidence that any data was Facebook’s engineering team were affected by the breach. The agency misused and therefore did not legally need discovered the attack on September 16 also criticized Facebook’s disclosure, to disclose the bug, according to The Wall after they saw an unusual spike in user stating that the September 28 notice Street Journal. activity. On September 25, the team lacked suffi cient details regarding the However, several observers criticized discovered that attackers exploited a attack. If Facebook is found to have the company for its decision to not series of fl aws relating to Facebook’s violated GDPR, it could be liable for immediately disclose the vulnerability. “View As” feature, which is designed up to four percent of annual revenue, In an October 8 Washington Post article, to allow users to experience how their according to CNBC. As the Bulletin Executive Director of the Center for profi le looks to another person. The fl aws went to press, the EU had not levied any Digital Democracy Jeff Chester called the allowed the attackers to steal access delay in revealing tokens — digital keys that allow access “Today’s disclosure [that millions the software bug “a to an account. Guy Rosen, Facebook’s digital cover up.” vice president of product, told Wired of Facebook users’ accounts were He added, “Google on September 28 that the attack was a compromised] is a reminder about the has demonstrated “complex interaction of multiple bugs,” dangers posed when a small number of that it cannot be adding that the attackers likely had some relied on to protect level of sophistication. companies like Facebook or the credit privacy.” In a September 28 conference call with bureau Equifax are able to accumulate Georgetown Law reporters, Facebook’s founder and CEO so much personal data about individual professor David Mark Zuckerberg said, “We were able C. Vladeck, the to fi x the vulnerability and secure the Americans without adequate security former director of accounts, but it defi nitely is an issue that measures.” the Federal Trade it happened in the fi rst place.” However, Commission’s neither Facebook nor Zuckerberg — Sen. Mark R. Warner (D-Va.) (FTC) Bureau identifi ed the attackers or where they may of Consumer have originated. Protection, told Sen. Mark R. Warner (D Va.), called the penalties against Facebook regarding the The Washington Post on October 8 that breach “deeply concerning” and requested September data breach. the incident was “obviously a problem a full investigation in a September 28 for Google.” He added, “Even if the statement. “Today’s disclosure is a Google Shuts Down Google+ problem was an unanticipated bug, reminder about the dangers posed when a Following Data Breach; Faces what is Google’s defense for concealing small number of companies like Facebook Criticism Over Non-Disclosure of that bug for six months, especially if or the credit bureau Equifax are able to Privacy Breach users could have taken steps to mitigate accumulate so much personal data about In an Oct. 8, 2018 statement, Google the . . . sharing of their data.” individual Americans without adequate announced that it had previously During an October 10 Congressional security measures,” Warner said. “This is discovered and remedied a “software hearing, Sen. Richard Blumenthal another sobering indicator that Congress bug,” which allowed third party (D Conn.) said that he would seek an needs to step up and take action to developers access to the personally investigation into the Google+ data protect the privacy and security of social identifi able information of as many as exposure. “I will be calling later today, in media users.” 500,000 Google+ users, including names, a letter to the FTC, for an investigation of Facebook will also likely face scrutiny email addresses, ages, occupations, Google in connection with this incident,” in the European Union (EU) due to the and relationship status between 2015 Blumenthal said, according to Engadget General Data Protection Regulation and March 2018. In the same statement, on the same day. He added that Ireland (GDPR), which took effect in May 2018 Google announced that the company and Germany were also looking into the after being adopted by the EU in Spring would largely discontinue its social matter. 2016 to harmonize data privacy laws network service, Google+, and introduced Conversely, Ben Smith, a Google vice across Europe and to protect EU citizen’s new tools to give users more control over president for engineering, defended data privacy rights. (For more information their data. However, observers criticized Google’s decision to not immediately on the GDPR, see “The United States, the Google for disclosing the breach seven disclose the breach. He wrote in the European Union, and the Irish High Court months after it was discovered in March. October 8 statement, “Whenever user Wrangle Data Privacy Concerns” in the The company’s statement came shortly data may have been affected, we go Fall 2017 issue of the Silha Bulletin and after an Oct. 8, 2018 report by The Wall beyond our legal requirements and apply Adopted EU General Data Protection Street Journal broke the news of the several criteria focused on our users in Regulation Establishes ‘Right to Erasure’ data exposure. The report discussed determining whether to provide notice.” in “Right to Be Forgotten Continues to an internal memo by Google’s legal and He added that in weighing whether Create Challenges for Online Entities” in policy staff warning senior executives, to disclose the incident, the company the Summer 2016 issue.) including Google’s CEO Sundar Pichai, considered “whether we could accurately After launching an investigation in that disclosing the incident would likely identify the users to inform, whether there September, the Irish Data Protection trigger “immediate regulatory interest.” was any evidence of misuse, and whether Commission, an agency charged The internal memo, as well as Google’s there were any actions a developer or with monitoring compliance with the own statement, argued that although user could take in response. None of these thresholds were met in this instance.” 6 Several privacy advocates noted that of privacy laws across various states • Maintain the quality of personal Google signed a consent decree with the and industries. An additional area of information FTC in 2011 to settle allegations that an discussion considered the appropriate • Make it practical for individuals earlier social media platform, Google enforcement agency, namely whether the to control the use of personal Buzz, mishandled user data. “I think Federal Trade Commission (FTC) should information we’re passed the point where Google be tasked with enforcing a federal law and • Give individuals the ability to should get to decide if Google has done whether its power should be expanded. access, correct, delete, and enough to address a problem. A company The executives further argued a federal download personal information deciding on its own whether or not it data privacy law should not resemble the about them thinks it should notify is never the right European Union’s (EU) new General Data • Secure personal information answer, because there's no incentive to Protection Regulation (GDPR), as many The framework also included several take the criticism and the stock hit,” Marc U.S. business owners found the GDPR areas providing scope and accountability, Rotenberg, president of the Electronic guidelines too strict to follow, according including “hold[ing] organizations Privacy Information Center, told Wired on to The Street. The GDPR, which took accountable for compliance,” “focus[ing] October 8. As a party of that settlement, effect in May 2018, was adopted by the on risk of harm to individuals and Google paid a fi ne of $22.5 million and EU in Spring 2016 to harmonize data communities,” and more. The full agreed to 20 years of privacy audits. privacy laws across Europe and to protect proposed framework is available online EU citizen’s data privacy rights. (For at: https://services.google.com/fh/fi les/ Tech Companies, Trump more information on the GDPR, see “The blogs/google_framework_responsible_ Administration, and Congress Push United States, the European Union, and data_protection_regulation.pdf. for Federal Strategies or Frameworks the Irish High Court Wrangle Data Privacy In an October 3 opinion piece for The Regarding Data Privacy and Concerns” in the Fall 2017 issue of the Washington Post , Neema Singh Guliani, Cybersecurity Silha Bulletin and Adopted EU General legislative counsel at the American In fall 2018, technology companies, Data Protection Regulation Establishes Civil Liberties Union (ACLU), argued the Trump administration, and a U.S. ‘Right to Erasure’ in “Right to Be that a federal law would likely preempt Representative each took actions Forgotten Continues to Create Challenges state laws. She therefore argued that towards a new federal law or framework for Online Entities” in the Summer 2016 the tech companies “suddenly [being] protecting internet users’ privacy and issue.) receptive to the idea of federal privacy security online. On Sept. 26, 2018, In a Sept. 14, 2018 “Deeplinks” blog legislation . . . [a]fter years of claiming executives from companies including post, the Electronic Frontier Foundation they could self regulate” was actually “an Google, Amazon, and Apple, among (EFF) expressed concern that the effort to enlist the Trump administration others, appeared before the U.S. Senate Committee had not invited any consumer and Congress in companies’ efforts to Committee on Commerce, Science and privacy groups to testify. “Since we can’t weaken state level consumer privacy Transportation to discuss and advocate be there to say this ourselves, we’ll say protections,” including in California. for a potential federal privacy law. it here: EFF will oppose any federal Previously, The Washington Post President Donald Trump’s administration legislation that weakens today’s hard reported on July 27, 2018 that several also took steps regarding a potential fought privacy protections or destroys tech companies, including Facebook, national consumer cybersecurity the states’ ability to protect their citizens’ IBM, Microsoft, and others, were working and privacy framework, including a personal information. EFF has had a long with the Trump administration to lobby framework proposed by the White and continuous battle with some of the Congress to pass a federal law. House, a proposed approach to online testifying companies, such as Google Guliani continued, “[W]iping out consumer privacy by the National and AT&T, regarding your right to data — otherwise known as preempting — Telecommunications and Information privacy, and we’re not going to give up state protections would be a bad deal Administration (NTIA), an offi ce within now,” the post read. The full blog post is for consumers.. . . [It would] likely put the U.S. Department of Commerce, and a available online at: https://www.eff.org/ existing consumer protections, many of meeting held by the U.S. Department of deeplinks/2018/09/game rigged congress which are state led, on the chopping block Justice (DOJ). Finally, in October 2018, invites no consumer privacy advocates and leave states bound by a federal law U.S. Rep. Ro Khanna (D Calif.) announced its consumer privacy. that could prevent additional consumer that he had introduced an “Internet Bill of One day prior to the hearing, ZDNet privacy protections from ever seeing the Rights,” which sought to protect internet reported that Google had published a light of day. State regulators could lose users’ data privacy and security through proposed framework for a federal data the authority to sue or fi ne companies that six key principles. protection regulation. The framework violate their laws. And consumers may According to The Street and Mashable listed several requirements of tech even be barred from taking companies to on September 26, the main line of companies and other organizations, court.” discussion in the Senate Committee including that they: Guliani further argued that hearing centered around what should • Collect and use personal “[p]articularly in the area of consumer be considered when creating or information responsibly privacy, we should be wary of preemption implementing a federal privacy law. • Mandate transparency and help that could lock in place federal standards Several news outlets reported that the individuals be informed that are soon obsolete. Today, even tech company executives generally • Place reasonable limitations refrigerators can collect sensitive data. expressed a need for a federal privacy on the manner and means of New technology will likely require law in order to provide “clarity and collecting, using, and disclosing consistency,” rather than a “patchwork” personal information Privacy, continued on page 8 7 Privacy, continued from page 7 through security, internet freedom, and • Right to disclosure amount, more. The full document is available nature, and dates of secret additional protections and experimenting online at: https://www.whitehouse.gov/ government data requests with different solutions, and states have wp content/uploads/2018/09/National • Right to be fully informed of a vital role in fashioning those solutions.” Cyber Strategy.pdf. scope of data use She concluded by stating, “This doesn’t Meanwhile, on Sept. 25, 2018, the • Right to be informed when there mean we should give up on strong federal NTIA issued a Request for Comment is change of control over data privacy legislation; we need it now more on a “proposed approach to consumer The full press release is available than ever. But any such legislation must data privacy designed to provide high online at: http://www.rokhanna.com/ put consumers in control of their own levels of protection for individuals, while issues/internet bill rights. data.” giving organizations legal clarity and the An October 4 New York Times op In an October 19 interview with fl exibility to innovate.” According to a ed provided four additional principles Legaltech News, Laura Moy, executive press release connected to the Request for articulated by Khanna, including that director of Georgetown Law’s Center Comment, the “Trump Administration’s consumers should have to give their on Privacy & Technology, agreed that proposed approach focuses on the desired permission — an “opt in” rather than “opt a federal standard that eliminates state outcomes of organizational practices, out” system — before their data can be laws surrounding cybersecurity could rather than dictating what those practices collected and shared with third parties. do more harm than good. “There are a should be,” therefore providing more In an October 15 interview with number of reasons consumers benefi t autonomy to companies. Legaltech News, Marc Rotenberg, from state cybersecurity and privacy The desired outcomes of the approach executive director and president of the laws — not only do they often contain included that organizations “should be Electronic Privacy Information Center strong substantive standards, but states transparent about how they collect, in Washington, D.C., called Khanna’s are often much more able to update their use, share, and store users’ personal principles for an Internet Bill of Rights laws in response to the changing digital information” and also “employ security “a very useful framework.” Berin Szoka, environment than Congress can do,” safeguards to protect the data that they president of the libertarian think tank Moy said. “Consumers also benefi t from collect, store, use, or share,” among other TechFreedom, agreed, contending that the excellent work of state attorneys recommendations. Users should be able “[s]ome of these things [the Internet general who not only vigorously enforce to “exercise control over the personal Bill of Rights principles] are totally state specifi c laws, but also engage in information they provide to organizations” uncontroversial and everyone would ongoing dialogue with businesses and and “reasonably access and correct agree on.” provide useful guidance materials that personal data they have provided.” The However, he also pointed out that help well meaning businesses to comply.” full press release is available online Khanna’s principles are “just principles” In fall 2018, the Trump administration at: https://www.ntia.doc.gov/press and not legislation that would provide also took additional steps towards a release/2018/ntia seeks comment new specifi cs. Szoka also contended that they national data privacy and cybersecurity approach consumer data privacy. could pose some potential problems, framework. On Sept. 20, 2018, the White Also on September 25, Reuters such as whether the principle of a data House announced the introduction of reported that then Attorney General Jeff collection entity having “reasonable the new “National Cyber Strategy of the Sessions led a DOJ “listening session” business practices and accountability to United States.” The document identifi ed with 13 state attorneys general, as well protect your privacy” would be nebulous four “pillars” of cybersecurity strategy, as the attorney general of the District and make the FTC akin to the Consumer including fi rst that it would “Protect the of Columbia, focusing on “protecting Financial Protection Bureau. “The American People, the Homeland, and the consumer privacy.” According to implications for the commission could American Way of Life.” This would be Nebraska Attorney General Doug be a very broad authority,” he said. “[It] accomplished in three ways: “Secur[ing] Peterson, much of the discussion could be problematic and the commission Federal Networks and Information,” focused on whether concerns over the could have a blank slate, and it would “Secur[ing] Critical Infrastructure,” and collection of consumers’ personal data be hard to comply. You may say, ‘I don’t “Combat[ing] Cybercrime and Improv[ing] could be addressed through antitrust law, feel sorry for Google and Facebook,’ but Incident Reporting.” an area of law preventing monopolies the smaller companies trying to become Pillar II aimed to “Promote American and promoting fair competition and Google [or] Facebook won’t be able to Prosperity” by fostering “a Vibrant and business practices. Peterson also said navigate,” which would ultimately risk Resilient Digital Economy,” protecting that the session led to “no immediate less competition from startups.” “United States Ingenuity,” and developing conclusions.” As the Bulletin went to press, the “a Superior Cybersecurity Workforce.” Finally, in early October 2018, Rep. federal government had not formally Pillar III was titled “Preserve Peace Khanna introduced an “Internet Bill of enacted or passed a federal data privacy through Strength” and included Rights,” in order to protect internet users’ law or framework. enhancing cyber stability through data privacy and security. According to a responsible government action, as press release by Khanna’s offi ce, the Bill SARAH W ILEY well as “attribut[ing] and [deterring] of Rights included six key principles: SILHA R ESEARCH A SSISTANT Unacceptable Behavior in Cyberspace.” • Right to universal web access Finally, Pillar IV aimed to “Advance CASEY C ARMODY • Right to Net Neutrality American Infl uence” through the FORMER S ILHA R ESEARCH A SSISTANT • Right to be free from warrantless promotion of an open internet, such as metadata collection
8 President Trump Continues Anti-Press Rhetoric and Actions n fall 2018, President Donald Meanwhile, on August 16, more than the Summer 2018 issue, “Reporters and Trump and his administration 400 news outlets, including The New Leakers of Classifi ed Documents Targeted continued to use and promote York Times and the Minneapolis Star by President Trump and the DOJ” in the anti press rhetoric and actions. On Tribune , posted coordinated op ed pieces Summer 2017 issue, “Media Face Several November 7, President Trump called supporting journalists and denouncing Challenges During President Trump’s ICNN reporter Jim Acosta “a rude, terrible President Trump’s political attacks on First Months in Offi ce” in the Winter/ person” during a press conference after the media. The following day, the U.S. Spring 2017 issue, and “2016 Presidential Acosta asked the president about his Senate unanimously passed a resolution Candidates Present Challenges for Free characterization “reaffi rming freedom of the press as a Expression” in the Summer 2016 issue.) FIRST of the Central priority in efforts of the Government of AMENDMENT American migrant the United States to promote democracy President Trump Calls CNN Reporter caravan as “an and good governance.” “Rude, Terrible Person,” Revokes invasion,” among As a presidential candidate and as His Press Credentials; Federal Judge other topics. Later the same day, the president, Trump has frequently referred Requires Trump Administration Trump administration revoked Acosta’s to journalists and news outlets as the Reinstate Credentials “hard” press credential, restricting his “fake news media” and “enemies of the On Nov. 7, 2018, President Donald access to the White House. On November people.” A Sept. 21, 2018 poll conducted Trump called CNN reporter Jim Acosta 13, CNN and Acosta fi led a lawsuit in by the Minneapolis Star Tribune and “a rude, terrible person” after he asked federal court against President Trump, Minnesota Public Radio (MPR) News the president about his characterization as well as several members of his found that “[j]ust 29 percent of likely of the Central American migrant administration, contending that revoking voters statewide approved of Trump’s caravan as “an invasion” during a press Acosta’s credentials violated the First and description of the news media as the conference following the 2018 midterm Fifth Amendments, among other claims. enemy of the people, while 64 percent elections. Hours later, several media On November 16, a federal judge required disapproved.” However, 68 percent of outlets reported that the White House had that the White House reinstate Acosta’s Republicans approved of President revoked Acosta’s “hard” press pass for the credentials, reasoning that Acosta Trump’s rhetoric, compared to 20 percent White House. On November 13, CNN and suffered “irreparable harm” because he of independents and four percent of Acosta fi led a lawsuit in the U.S. District was denied due process under the Fifth Democrats. Court for the District of Columbia against Amendment. The judge also indicated In a September 21 interview with the President Trump and several members of that Acosta’s First Amendment rights Minneapolis Star Tribune, Silha Center his administration, arguing that Acosta’s outweighed the White House’s right to Director and Silha Professor of Media First and Fifth Amendment rights had have orderly press conferences, and that Ethics and Law Jane Kirtley called it been violated, and that President Trump’s the First Amendment applies when an “dangerous” for President Trump to swipe administration failed to follow the administration opens the White House broadly at the news media, which she said proper protocols, therefore violating the grounds to some reporters, but denies it is “one of the most important checks on Administrative Procedure Act, 5 U.S.C. to others. The White House reinstated the government excesses and one of the most § 706. On November 16, a federal judge credentials three days later. important conduits of information for the ruled that the White House must reinstate On October 19, President Trump public.” She added, “If you’re going to say, Acosta’s credentials, fi nding that Acosta praised Rep. Greg Gianforte (R Mont.) ‘No, you don’t need information,’ or ‘It’s a suffered “irreparable harm” because his during a rally in Missoula, Mont., subversive act to provide it to you,’ that’s due process rights had been violated. On prompting criticism from media right out of the autocrat’s playbook.” November 19, the White House reached a members and observers. Previously, in (For more information on President “fi nal determination” and told CNN that it June 2017, Gianforte had pleaded guilty Trump’s relationship with the media, would restore Acosta’s press credentials, to misdemeanor assault after “body see “Journalists in the United States and so long as he abided by new rules at slamming” Guardian political reporter Abroad Face Threats of Violence and presidential press conferences. CNN Ben Jacobs during a May 2017 campaign Incarceration” on page 17 of this issue summarily dropped the lawsuit against event. of the Silha Bulletin, Five Newspaper the White House, writing in a statement Finally, on September 5, President Staff Members Killed, Two Injured in that it was “no longer necessary.” Trump called on the U.S. Department of Shooting at Local Maryland Newsroom During the November 7 press Justice (DOJ) to investigate an anonymous in “Journalists Face Physical Violence, conference, President Trump told Acosta, op ed published by The New York Times Other Dangers in the United States and “I think you should let me run the country, that purported to be written by a senior Abroad,” and Federal Prosecutors Seize you run CNN and if you did it well, your Trump administration offi cial. The same Phone and Email Records of New York ratings would be much better.” As Acosta week, President Trump reiterated his Times Reporter in Leak Investigation in continued trying to question President desire to “change libel laws” in the United “Trump Administration Targets Journalist, Trump about the migrant caravan and the States following the publication of a book Leaker of Government Information, Special Counsel investigation by Robert providing behind the scenes details about and Former Government Employees Mueller, President Trump repeated “That’s the Trump White House. Who Took Classifi ed Documents,” in Anti-Press, continued on page 10 9 Anti-Press, continued from page 9 Instead, it appeared to have come from leaders and our journalists. In fact, they Paul Joseph Watson, an editor at large for designed our system that way, knowing enough. That’s enough. That’s enough. ‘InfoWars,’ a media organization known that a free and assertive press is the best That’s enough” and told Acosta to “put for peddling conspiracy theories and defense against tyranny.” down the mic” as a White House intern hateful content.” CNN added that the White House Correspondents’ reached to grab it. President Trump video “did not accurately portray what Association (WHCA) president Oliver added, “CNN should be ashamed of itself happened — it appears to show Acosta's Knox also called for the White House to having you working for them. You are arm moving in a downward motion reinstate Acosta’s credentials. “Journalists a rude, terrible person. You shouldn’t towards the intern’s arm faster than it may use a range of approaches to carry be working for CNN.. . . You’re a very actually did.” out their jobs and the WHCA does not rude person. The way you treat [White The Washington Post added on police the tone or frequency of the House Press Secretary] Sarah Huckabee November 11 that the video was missing questions its members ask of powerful [Sanders] is horrible. And the way you Acosta saying “Pardon me, ma’am,” as he senior government offi cials, including the treat other people are horrible. You maintains a fi rm grip on the microphone. President,” he wrote in a statement. “Such shouldn’t treat people that way.” The Post also noted that the video tweeted interactions, however uncomfortable they According to The Washington Post by Sanders also contained repeated may appear to be, help defi ne the strength on November 7, NBC News reporter frames that did not exist in the original of our national institutions. We urge the Peter Alexander tried to stand up for footage. White House counselor Kellyanne White House to immediately reverse this Acosta, calling him a “diligent reporter.” Conway, in a November 11 interview on weak and misguided action.” Trump responded, “Well, I’m not a big “Fox News Sunday,” contended that the In a November 10 interview with fan of yours, either.” Later in the press video was not altered, but merely “sped WCCO News Talk 830 in Minneapolis, conference, after PBS NewsHour’s White up.” Silha Center Director and Silha Professor House correspondent Yamiche Alcindor Acosta responded to Sanders in a of Media Ethics and Law Jane Kirtley asked President Trump about calling November 7 tweet, “This is a lie.” In a argued that the video circulated by himself a “nationalist” and whether he statement, CNN criticized President Sanders was especially problematic. was supporting white nationalists, the Trump and the decision to suspend “Lifting his press pass is a big step. And president responded, “I don’t know why Acosta’s access to the White House. I think, in my own view, unjustifi ed. But you’d say that — that’s such a racist “This president's ongoing attacks on the let’s take it one step further, if that’s not question.” press have gone too far. They are not bizarre enough, . . . the other thing is Later in the day on November 7, only dangerous, they are disturbingly Sarah Sander’s circulation of the doctored Acosta tweeted “I’ve just been denied un American,” the statement read. “While videotape of the press conference. This is, entrance to the [White House]. Secret President Trump has made it clear he to me, without precedent. I cannot think Service just informed me I cannot enter does not respect a free press, he has a of anything comparable that’s happened the WH grounds for my 8pm hit.” Sanders sworn obligation to protect it. A free press in any White House and I think it’s beyond summarily posted a series of tweets is vital to democracy, and we stand behind the pale.” confi rming that the White House had Jim Acosta and his fellow journalists She continued, “I see absolutely no suspended Acosta’s “hard pass” to enter everywhere.” way, no matter how strongly you support the White House “until further notice.” Other observers and reporters also the president, how you can possibly think Sanders also tweeted the White House’s decried the move, including Chuck Ross, that it’s acceptable for the White House reasoning for doing so. “President Trump a reporter at The Daily Caller, a website to basically be distributing this thing that believes in a free press and expects and that often criticizes CNN, who stood up [President Trump] keeps saying he hates welcomes tough questions of him and his for Acosta. “Plenty to criticize Acosta so much, which is ‘fake news.’” Kirtley Administration. We will, however, never about,” Ross tweeted on November 7, “but added, “I’m not saying it was a great tolerate a reporter placing his hands he did not ‘place his hands’ on the intern. optical moment for anybody there. But on a young woman just trying to do her It’s ridiculous for anyone to suggest he the way it has been framed as he was job as a White House intern,” Sanders did.” chopping her arm, that is just not true.” tweeted, contending that Acosta had In a November 7 press release, the Richard Tofel, the general manager assaulted the intern who tried to take the Reporters Committee for Freedom of the of non profi t investigative journalism microphone away from him during the Press (RCFP) wrote that it “vehemently organization ProPublica, suggested press conference. Sanders continued, object[ed] to the revocation of a CNN in a November 13 interview with The “This conduct is absolutely unacceptable. reporter’s access credentials.” The press Washington Post that journalists band It is also completely disrespectful to the release continued, “Journalists have a together and walk out of the White House reporter’s colleagues not to allow them right to ask questions and seek answers press room. “If favorable coverage is an opportunity to ask a question.. . . As on behalf of the American people. This is the price of operating with the [White a result of today’s incident, the White clearly inappropriate and unprecedented House] gates, then we can cover it from House is suspending the hard pass of the punishment by the Trump administration outside the gates,” he said. “I think that reporter involved until further notice.” for what it perceives as unfair coverage as a matter of press freedom, the press Additionally, Sanders tweeted a video by the reporter, and White House Press corps in the room should say, ‘If you’ve depicting Acosta refusing to let go of the Secretary Sarah Sanders’ false description redefi ned the rules to hand out passes microphone. However, CNN reported the of the events leading up to it is insulting only to those whose coverage you don’t following day that the video did not “come not only to the nation’s journalists, but to object to, we’re all leaving.’ This isn’t directly from one of the many cameras its people. The founders of our country principally a legal question. It’s a question that had been at the press conference. knew there would be tension between our of editorial independence.” 10 Some media experts contended that On November 11, The Hill reported Second, the lawsuit cited New York CNN could sue the White House over that former ABC News White House Times v. Sullivan in which the U.S. banning Acosta. In a series of tweets on correspondent Sam Donaldson had Supreme Court held that the First November 7, University of Georgia media claimed on CNN’s “Reliable Sources” that Amendment demonstrates a “profound law professor Jonathan Peters explained CNN and Acosta were, in fact, suing the national commitment to the principle the “legal implications of pulling Acosta’s Trump administration, citing that he had that debate on public issues should be hard pass.” He cited Sherrill v. Knight in been asked to submit an affi davit in the uninhibited, robust, and wide open, which the U.S. Court of Appeals for the lawsuit in preparation for a court hearing. and that it may well include vehement, D.C. Circuit held that The Nation writer On November 8, literary and human caustic, and sometimes unpleasantly Robert Sherrill had a First Amendment rights group PEN American Center, Inc. sharp attacks on government and public right of access to White House news (PEN America) published a press release offi cials.” 376 U.S. 254, 270 (1964). The conferences because they were “generally in response to the withdrawal of Acosta’s lawsuit also cited Hustler Magazine, Inc. inclusive” of the press. 569 F.2d 124 credentials. The press release explained v. Falwell , in which the Court held that (1977). The court added, however, that that the group had fi led a lawsuit in government offi cials “lack the authority to “It would certainly be unreasonable October against President Trump “arguing quash ‘[t]he sort of robust political debate to suggest that because the President that his threats and use of the machinery encouraged by the First Amendment’ — allows interviews with some bona fi de of government to exact reprisals against debate that is ‘bound to produce speech journalists, he must give this opportunity journalists and media organizations that is critical of those who hold public to all.” violate the First Amendment.” The press offi ce.’” 485 U.S. 46, 51 (1988). Peters added that excluding a release continued, “We specifi cally cited Additionally, the lawsuit cited Sherrill journalist “arbitrarily or absent his threats to withdraw press credentials v. Knight , reiterating the same points good cause would implicate the from reporters based on critical questions made by Peters that the D.C. Circuit “has First Amendment.” He continued, and stories as a prime example of been clear that ‘the protection afforded “Lower courts have used that this behavior.. . . The White House’s newsgathering under the fi rst amendment approach — protecting [journalists’] withdrawal of the press credentials of guarantee of freedom of the press requires access where it’s ‘generally inclusive’ CNN White House reporter Jim Acosta that . . . access [to White House press of the press, while otherwise allowing was in clear retaliation for Acosta’s facilities] not be denied arbitrarily or for offi cials selectively to grant interviews persistent questioning of the President on less than compelling reasons.’” and give out [information] — in many topics he did not wish to address during a Third, CNN and Acosta argued that contexts: access to tax records, press press conference yesterday afternoon.” the revocation of his press credentials tables, prosecutorial records, etc.” Peters The press released added, “The violates the First Amendment, contending concluded by writing, “A critical question, rescission of Acosta’s credentials, that “[the plaintiffs’] access to the White constitutionally, is whether Acosta’s hard accompanied by a demonstrably false House, their coverage of the November pass was pulled ‘arbitrarily’ or ‘for less account by White House Press Secretary 7, 2018 press conference, and Acosta’s than compelling reasons.’” Sarah Huckabee Sanders of the actions questions to President Trump during In a November 11 interview on CNN’s that led to the withdrawal, are yet more that conference . . . were all protected “Reliable Sources,” prominent First evidence that the President and the activities under the First Amendment.” Amendment attorney Floyd Abrams also administration feel no compunction about The lawsuit further argued that the contended that CNN could sue the White exacting punishment on journalists for defendants initially claimed they revoked House, but argued that the network would hard hitting coverage.” Some observers the credentials because Acosta “placed likely exercise caution. “I think it’s a suggested that Acosta was considering his hands” on an intern, but that this really strong lawsuit,” Abrams said. “I can joining the PEN American lawsuit. (For contention was inaccurate. The complaint understand CNN being reluctant to sue more information on the PEN America also contended that President Trump’s because the president keeps saying CNN lawsuit, see “President Trump Prevails statement that Acosta’s credentials were is the enemy of me, and CNN might have in Two Federal Court First Amendment suspended because he failed to “treat the reluctance to have a lawsuit titled ‘CNN Rulings, Faces New Lawsuit in Southern White House with respect” was “hollow vs. Donald Trump.’ That said, yes, I think District of New York” on page 23 of this and hardly suffi ciently compelling to they should sue.” issue of the Silha Bulletin.) justify the indefi nite revocation.” As a Abrams further argued that it was On November 13, several media outlets result, according to the lawsuit, the “only likely the White House would ban reported that CNN and Acosta had, in reasonable inference from Defendants’ another reporter in the future. He said, fact, fi led a lawsuit in the U.S. District conduct is that they revoked Acosta’s “So whether it’s CNN suing or the next Court for the District of Columbia against credentials as a form of content and company suing, someone is going to have President Trump, as well as several viewpoint based discrimination and to bring a lawsuit.. . . And whoever does members of his administration, including in retaliation for Plaintiffs’ exercise of is going to win unless there’s some sort Sanders. The complaint fi rst detailed protected First Amendment activity.” of reason.” (Abrams delivered the 20th President Trump’s anti press criticism, Fourth, the complaint asserted that Annual Silha Lecture, titled “Confi dential which “has been directed at other news revocation of Acosta’s press credentials Sources of Journalists: Protection or organizations [beyond CNN].” The violated his Fifth Amendment right to due Prohibition?” on Oct. 24, 2005. For more complaint added that the “revocation of process because he received no direct on the lecture, see “2005 Silha Lecture Acosta’s credentials is only the beginning; notice or an “opportunity to be heard” Features First Amendment Attorney Floyd as the President explained, there ‘could before his credentials were revoked. The Abrams” in the Fall 2005 issue of the be others also’ who get their credentials Silha Bulletin.) revoked.” Anti-Press, continued on page 12 11 Anti-Press, continued from page 11 After CNN and Acosta fi led their with First Amendment Implications of complaint, the White House released a Politicians Blocking Social Media Users” complaint also stated that Acosta received statement, which read, “We have been in the Summer 2018 issue of the Silha no written explanation for the revocation. advised that CNN has fi led a complaint Bulletin.) Further, the complaint alleged that challenging the suspension of Jim On November 14, the U.S. Department Acosta “cannot serve as a White House Acosta’s hard pass. This is just more of Justice (DOJ) fi led a memorandum correspondent” because, without his grandstanding from CNN, and we will in support of the White House’s credentials, he cannot access his offi ce in vigorously defend against this lawsuit.” opposition to the plaintiffs’ motion the White House. The statement continued, “CNN, who has for a TRO, contending that the White Finally, the complaint alleged that nearly 50 additional hard pass holders, House’s “discretionary decision [to the defendants’ actions violated the and Mr. Acosta is no more or less special revoke Acosta’s] credential was “lawful” Administrative Procedure Act because than any other media outlet or reporter and “permissible.” The memorandum they “acted arbitrarily, capriciously, and with respect to the First Amendment. reasoned that President Trump and otherwise not in accordance with law.” After Mr. Acosta asked the President two the White House “possess the same The complaint noted that “[g]enerally, questions — each of which the President broad discretion to regulate access to the Secret Service may grant or deny a answered — he physically refused to the White House for journalists[.]” The request for a security clearance made surrender a White House microphone to memorandum contended that because in connection with an application for a an intern, so that other reporters might the president and his staff have “absolute White House press pass” under 31 C.F.R. § ask their questions. This was not the fi rst discretion over which journalists they 409.1. However, the complaint also stated time this reporter has inappropriately grant interviews to, as well as over which that the Secret Service’s discretion is refused to yield to other reporters.” journalists they acknowledge at press “expressly limited” and that Secret Service The statement added, “The White events,” they also have discretion over offi cials making that determination must House cannot run an orderly and fair which journalists “receive on demand “be guided solely by the principle of press conference when a reporter acts access to the White House grounds and whether the applicant presents a potential this way, which is neither appropriate nor special access during White House travel source of physical danger to the President professional. The First Amendment is not for the purposes of asking questions to and/or the family of the President so served when a single reporter, of more the President or his staff.” serious as to justify his or her exclusion than 150 present, attempts to monopolize The memorandum further argued that from White House press privileges.” the fl oor. If there is no check on this “[n]o journalist has a First Amendment The complaint requested that the type of behavior it impedes the ability right to enter the White House.” district court enter several forms of relief, of the President, the White House staff, Additionally, the DOJ contended that including “[i]mmediate restoration of and members of the media to conduct Sherrill v. Knight did not apply because, Acosta’s press credentials and hard pass business.” in that case, the D.C. Circuit addressed so that Plaintiffs may continue to report In a November 13 interview with The “solely the Secret Service’s decision to from White House briefi ngs and perform Washington Post , executive director of deny a pass on security grounds to a their jobs on White House grounds and the Knight First Amendment Institute at journalist to whom the White House had at other presidential events.” The lawsuit Columbia University (Knight Institute) otherwise decided to grant access.” The also sought a “declaration that the Jameel Jaffer drew a parallel to a case memorandum stated that in this case, “‘all revocation of Acosta’s press credentials that the organization brought against parties’ do not ‘recognize’ that Mr. Acosta was unconstitutional.” President Trump in 2017, alleging that deserves access to the White House” and Gibson, Dunn & Crutcher LLP attorney he could not block his critics on Twitter. that “Acosta’s access [was] denied at a Theodore J. Boutrous, Jr. signed the On May 23, 2018, U.S. District Court for different stage in the decisional process.” complaint, which was accompanied by a the Southern District of New York Judge The DOJ added, “The public interest motion for a temporary restraining order Naomi Reice Buchwald ruled in favor of does not require that Mr. Acosta be (TRO). Boutrous also represented CNN the Knight Institute, fi nding that President given immediate access to the White at a November 14 hearing regarding the Trump had violated the First Amendment House complex. The public can benefi t motion for the TRO. (Boutrous delivered by blocking Twitter users who were from his reporting from outside the 33rd Annual Silha Lecture, titled critical of him or his policies, fi nding that the complex . . . and is additionally “Confi dential Sources of Journalists: it constituted viewpoint discrimination. well served by the numerous other Protection or Prohibition?” on Oct. 17, Knight First Amendment Institute v. journalists who retain their hard passes.” 2018. For more on the lecture, see “33rd Trump , 302 F.Supp.3d 541 (S.D.N.Y. 2018). The full memorandum is available online Annual Silha Lecture Addresses the Jaffer, citing Buchwald’s ruling, told at: https://www.cnn.com/2018/11/14/ Free Speech Implications of the #MeToo the Post, “The government cannot exclude media/white house response cnn lawsuit/ Movement” on page 62 of this issue of reporters from [the White House] because index.html. the Silha Bulletin.) Attorney Ted Olson, of their views.. . . Once the government In a November 16 hearing, District of known best for representing George W. created a general right of access it Columbia Judge Timothy J. Kelly, who Bush in Bush v. Gore, 531 U.S. 98 (2000), cannot selectively withdraw it based on was appointed to the court by President and CNN chief counsel David Vigilante viewpoint. Viewpoint is not a criterion Trump in 2017, ruled that the White House also represented CNN and Acosta. The that establishes a media organization’s was wrong to revoke Acosta’s credentials full complaint is available online at: right to be at a news briefi ng.” (For more and must immediately return them, https://cnnpressroom.fi les.wordpress. information on the Knight Institute’s granting the plaintiffs’ request for a TRO. com/2018/11/2 complaint.pdf. lawsuit and Buchwald’s ruling, see Although Kelly did not offi cially rule “Federal Courts and State Governors Deal on the underlying case regarding the First 12 and Fifth Amendments, he found that be most likely to look at the procedure questioner.” According to the letter, the White House did not provide Acosta that was followed here, or rather, not failure to abide by these rules “may with the due process required to legally followed, in taking way Acosta’s press result in suspension or revocation of the revoke his press pass, therefore causing pass. The reason I say that is because journalist’s hard pass.” As the Bulletin Acosta “irreparable harm,” according to that’s really the simpler way for the judge went to press, the new rules had not CNN on November 16. Kelly reasoned to approach a question like that. When been published in the Federal Register or that the decision to revoke Acosta’s hard you get into the First Amendment, it gets otherwise made offi cial. pass was “so shrouded in mystery that quite complicated unless you are the The letter stated, “Having received a the government could not tell me . . . who former Justice Hugo Black who [thought] formal reply from your counsel to our made the decision.” the First Amendment was absolute.” letter of November 16, we have made a According to BuzzFeed News Capitol Kirtley continued, “[Kelly] certainly fi nal determination in this process: your Hill reporter Paul McLeod, Kelly also reserves the right to go back later on as hard pass is restored.. . . Should you indicated that Acosta’s First Amendment the hearings progress and look at the First refuse to follow these rules in the future, rights overrule the White House’s right Amendment question in greater detail. we will take action in accordance with to have orderly press conferences. I will say that the fact that he said that the rules set forth above. The President Washington Post media critic Erik Acosta was suffering irreparable harm by is aware of this decision and concurs.” Wemple tweeted that Kelly also stated having the press pass taking away sounds The Post asserted that the action was that “the fact that [CNN] has other pass like the First Amendment is very much an “about face” and “appeared to be a holders does NOT make the ‘harm to lurking in the background because that is concession to CNN in its lawsuit against [Acosta] any less irreparable.” Kelly classic First Amendment language to say the [Trump] administration.” further contended that although there is that a journalist is ‘irreparably harmed’ CNN summarily dropped its lawsuit no First Amendment right to access the every minute he’s deprived of his right to against the White House, writing in White House grounds, once those areas gather the news.. . . That’s an important a statement that it was “no longer are opened to reporters, but denied to indicator, coupled with the fact that necessary” after Acosta’s press pass was others, the First Amendment “comes [Kelly] said he believes that Acosta will restored. The statement added, “We look into play,” according to The Guardian. ultimately prevail.” forward to continuing to cover the White However, The Washington Post reported On November 19, The Washington House.” that Kelly had clarifi ed that this was a Post reported that hours after Kelly’s Observers pointed out that this was “very limited ruling” and that he was ruling, Sanders and deputy chief of not the fi rst instance of the Trump not making a judgment on the First staff for communications Bill Shine administration excluding reporters from Amendment claims. had sent a letter to CNN and Acosta an event. In February 2017, several media CNN reported on November 16 that saying they would immediately suspend outlets, including The New York Times, Kelly “left open the possibility, however, his credentials again when the TRO CNN, the Los Angeles Times, the New that the White House could seek to expired after 14 days. The letter stated York Daily News , Politico, BuzzFeed, revoke it again if it provided that due that Acosta’s behavior “violated the the BBC, the Huffi ngton Post, and The process,” though Kelly also indicated that basic standards governing [news Guardian, were banned from attending a he thought Acosta and CNN would likely conferences], and is, in our preliminary “gaggle,” a press briefi ng that took place prevail in the case overall. judgment, suffi cient factual basis to in then White House Press Secretary Sean Following the hearing, Acosta told revoke your hard pass.” According to Spicer’s offi ce instead of the televised reporters outside the courthouse, “I just the Post, Boutrous summarily requested session typically held in the White House want to say something very briefl y and I an emergency hearing and an expedited briefi ng room. Time magazine and the want to thank all of my colleagues in the schedule, which would allow Kelly to Associated Press (AP) boycotted the press who supported us this week and I enter a preliminary injunction, the next briefi ng to show support for the banned want to thank the judge for the decision step after a TRO that provides more media. Conversely, overtly conservative he made today and let’s get back to lasting relief. news organizations The Washington work.” Boutrous told reporters, “This is However, also on November 19, the Times , One America News Network, and a great day for the First Amendment and Post reported that the White House had Breitbart News were invited to attend journalism.” reached a “fi nal determination” and the meeting. (For more information on In a statement, CNN and Acosta wrote, told CNN in a letter that they would the exclusion of the media outlets from “We are gratifi ed with this result and we restore Acosta’s press credentials, the press briefi ng, see President Trump look forward to a full resolution in the so long as he abided by new rules at Continues Longstanding Battles with the coming days. Our sincere thanks to all presidential press conferences. The Press in “Media Face Several Challenges who have supported not just CNN, but a four rules included: “(1) a journalist During President Trump’s First Months in free, strong and independent American called upon to ask a question will Offi ce” in the Winter/Spring 2017 issue of press.” ask a single question and then will the Silha Bulletin.) In a November 16 interview with yield the fl oor to other journalists; Additionally, on July 25, 2018, the WCCO, Kirtley explained that Kelly only (2) At the discretion of the President Trump administration “banned” CNN granted “a temporary restraining order, or other White House offi cial . . . a reporter Kaitlan Collins from a press which by its terms means that it will only follow up question or questions may be availability with President Trump and last for a short period of time pending permitted . . . (3) ‘Yielding the fl oor’ Jean Claude Juncker, the president of the further review.” Kirtley said that the includes, when applicable, physically European Commission, who were meeting ruling “played out the way I expected surrendering the microphone to that it would. I fi gured that [Kelly] would White House staff for use by the next Anti-Press, continued on page 14 13 Anti-Press, continued from page 13 And by the way, never wrestle him. You as well as President Donald Trump, to understand. Never.” He continued, “We criticize the op ed and the anonymous in the Rose Garden of the White House. endorsed Greg very early. But I heard that author, while others praised the decision Earlier that day, Collins represented all he body slammed a reporter. This was the by the Times to publish it. Three days television networks as the “pool reporter” day of the election or just before, and I later, President Trump called on the and had asked several questions at a thought, ‘Oh, this is terrible! He’s going to U.S. Department of Justice (DOJ) to photo op of the two leaders in the Oval lose the election.’ And then I said, ‘Wait investigate the anonymous op ed. Offi ce. Among Collins’ questions were a minute, I know Montana pretty well, Meanwhile, some observers noted that “Did Michael Cohen betray you, Mr. I think it might help him.’ And it did.” the release of the op ed occurred at President?” and “Mr. President, are you He concluded, “Any guy that can do a the same time as the publication of a worried about what Michael Cohen is body slam . . . is my guy.” book by Bob Woodward, an associate about to say to the prosecutors?” In an October 19 statement, The editor at The Washington Post, in which The move prompting criticism from Guardian U.S. editor John Mulholland he provided behind the scenes details several observers, including Fox News said, “The president of the United States about the Trump White House based president Jay Wallace, who came to the tonight applauded the assault on an on anonymous interviews with several defense of Collins and CNN in a July 25 American journalist who works for the Trump administration offi cials and other statement. “We stand in strong solidarity Guardian. To celebrate an attack on a individuals. The publication of the book with CNN for the right to full access journalist who was simply doing his job prompted President Trump to reiterate his for our journalists as part of a free and is an attack on the fi rst amendment by desire to “change libel laws” in the United unfettered press,” he said. The Hill noted someone who has taken an oath to defend States. on July 26 that two weeks earlier, during a it.” He continued, “[I]t runs the risk of The September 5 op ed, titled “I Am July 13 joint news conference with British inviting other assaults on journalists Part of the Resistance Inside the Trump Prime Minister Theresa May, President both here and across the world where Administration,” fi rst asserted that Trump had refused to answer questions they often face far greater threats. We “many of the senior offi cials in his own from Acosta, calling CNN “fake news.” hope decent people will denounce these administration are working diligently from (For more information on the White comments and that the president will see within to frustrate parts of his agenda House banning Collins’ and President fi t to apologize for them.” and his worst inclinations” because those Trump’s comments during the July 13 joint In an October 19 article for CNN offi cials, including the author of the op ed, news conference, see Five Newspaper Politics, editor at large Chris Cillizza “believe [their] fi rst duty is to this country, Staff Members Killed, Two Injured in explained why President Trump’s and the president continues to act in a Shooting at Local Maryland Newsroom in comments were so problematic. “Trump manner that is detrimental to the health of “Journalists Face Physical Violence, Other undoubtedly viewed this line as a success our republic.” Dangers in the United States and Abroad” because people laughed — always his The op ed goes on to criticize in the Summer 2018 issue of the Silha measure of whether a barb worked,” President Trump, such as that he “shows Bulletin.) Cillizza wrote. “But, ask yourself this: little affi nity for ideals long espoused by What was the humor proposition here? conservatives” and that his leadership President Trump Praises Montana What were people actually laughing at? style is “impetuous, adversarial, petty Congressman Who Assaulted Reporter The answer is this: They were laughing at and ineffective.” The piece also criticized On Oct. 19, 2018, President Donald one person assaulting another.” Cillizza President Trump’s “mass marketing of Trump prompted additional criticism continued, “What all of that spin and, the notion that the press is the “enemy from media members and observers frankly, garbage, misses is that what of the people,” which the author argued when he praised Rep. Greg Gianforte Trump is doing — along with those who was “anti democratic.” The full op ed is (R Mont.) during a rally in Missoula, laugh when he does it — is dehumanizing available online at: https://www.nytimes. Mont. In June 2017, Gianforte pleaded reporters. These aren’t people like you com/2018/09/05/opinion/trump white guilty to misdemeanor assault after “body and I, Trump is saying. They deserve house anonymous resistance.html?actio slamming” Guardian political reporter to get beat up, to get assaulted, to n=click&module=Opinion&pgtype=Hom Ben Jacobs during a May 2018 campaign get roughed up a little bit.. . . All of epage. event. Gianforte later apologized for the which . . . is troubling. Very troubling.” Below the headline of the op ed, The incident and was sentenced to a 180 day On Nov. 11, 2018, the Huffi ngton Post New York Times included the message, deferred sentence, which included anger reported that Gianforte won re election in “The Times is taking the rare step of management and community service. Montana. The Post noted that Gianforte’s publishing an anonymous Op Ed essay. (For more information on Gianforte’s “biggest hurdle to re election was likely We have done so at the request of the assault of Jacobs, see Montana Politician his own reputation,” citing his assault of author, a senior offi cial in the Trump “Body Slams” Journalist, Pleads Guilty Jacobs. administration whose identity is known to Misdemeanor Assault in “Journalists to us and whose job would be jeopardized Face Physical Restraints and Arrests; The New York Times Publishes Op-Ed by its disclosure. We believe publishing Trump Video Raises Further Concerns by Senior Trump Administration this essay anonymously is the only way about Violence Against the Media” in the Offi cial, Drawing Criticism from to deliver an important perspective to Summer 2017 issue of the Silha Bulletin.) President Trump and Some Observers our readers.” The message also stated According to The Guardian and On Sept. 5, 2018, The New York Times that readers could “submit a question Reuters, President Trump called Gianforte published an op ed that purported to be about the essay or our vetting process” “a great guy” and a “tough cookie.” written by a senior Trump administration on a separate online form that would President Trump also said, “Greg is smart. offi cial, prompting some observers, send the questions to Times op ed editor, 14 James Dao, who would answer a selection Christopher A. Wray declined to say “I’ve seen op ed pieces in the Times and of them. The form, which is no longer whether the agency would conduct an elsewhere that were written by people accepting submissions, is available online investigation. As the Bulletin went to that had been physically abused either in at: https://www.nytimes.com/2018/09/05/ press, neither the DOJ nor the FBI had this country or were political dissidents in reader center/oped questions. announced whether an investigation was other countries.. . . What of course makes html?module=inline. conducted. this so unusual is the timing of this right On September 8, the Times published President Trump was not alone on top of the release of Bob Woodward’s a story titled “How the Anonymous Op Ed in criticizing the Times op ed. In a book, which is just chockful of allegations Came to Be,” which answered several September 5 opinion piece for The that are from sources whose identity is questions raised by readers, including Washington Post , media critic Erik not revealed.” “Why did you publish this piece?” Dao Wemple criticized it as “not [having] a Woodward, an associate editor at The responded that the op ed “offered a lot of news value.” He cited “remarkable Washington Post , authored a book titled signifi cant fi rst person perspective we work” done by reporters “over the past Fear in which he “paints a harrowing haven’t presented to our readers before: couple of years in documenting how portrait of the Trump presidency, that of a conservative explaining why they President Trump’s Cabinet and staff have based on in depth interviews with felt that even if working for the Trump freaked out over his incompetence.” administration offi cials and others,” administration meant compromising However, Wemple added, “Like most according to a September 5 story by the some principles, it ultimately served anonymous quotes and tracts, this one Post. Prior to the offi cial release of the the country if they could achieve some is a PR stunt. Mr. Senior Administration book, which occurred on September of the president’s policy objectives Offi cial gets to use the distributive power 11, President Trump suggested in a while helping resist some of his worst of [The New York Times] to recast an September 5 tweet that Congress should impulses.” Another question asked how entire class of federal appointees. No change libel laws. He wrote, “Isn’t it a the Times found the writer, to which Dao longer are they enablers of a foolish shame that someone can write an article responded, “The writer was introduced to and capricious president. They are now or book, totally make up stories and form us by an intermediary whom we know and the country’s most precious and valued a picture of a person that is literally the trust.” The full article is available online patriots.” exact opposite of the fact, and get away at: https://www.nytimes.com/2018/09/08/ In an interview with MSNBC, David with it without retribution or cost. Don’t reader center/anonymous op ed trump. Jolly, a former Republican representative know why Washington politicians don’t html?module=inline. from Florida, said that if the author of the change libel laws?” Following the publication of the op ed “wants to do something in service In a September 5 interview with op ed, on September 5, President Trump to the nation, you have to come forward PolitiFact, University of Michigan law criticized the Times and the anonymous and sign your name for this.” professor Leonard M. Niehoff argued that author. He wrote in a tweet, “Does the In a September 5 statement, New York under President Trump’s hypothetical of so called ‘Senior Administration Offi cial’ Times spokesperson Eileen Murphy someone who “totally make[s] up stories really exist, or is it just the Failing New defended the op ed. She wrote, “We are and form[s] a picture of a person that is York Times with another phony source? incredibly proud to have published this literally the exact opposite of the fact,” If the GUTLESS anonymous person does piece, which adds signifi cant value to the would be subject to current defamation indeed exist, the Times must, for National public’s understanding of what is going laws. Niehoff said, “The president’s tweet Security purposes, turn him/her over to on in the Trump administration from clearly assumes a situation where two government at once!” President Trump someone who is in a position to know.” things are the case.. . . First, that the also tweeted, “TREASON?” In a September 6 story, the BBC person has ‘totally’ and intentionally Additionally, on September 7, multiple praised the publication of the op ed, ‘made the information up’ — it’s not an news outlets reported that President arguing that it “passe[d] key tests.” The instance of a mistake but of deliberate Trump told reporters aboard Air Force article stated that “the approach to fabrication. And second, that the One that then Attorney General Jeff anonymity is informed by those same statement made is one of ‘fact’ and so Sessions “should be investigating who the two principles: protection of sources, and is capable of being proved true or false, author of this piece was because I really editorial justifi cation.” The BBC argued rather than being an opinion or a belief.” believe it’s national security.” that although a reported could have “used Niehoff argued that in this situation, In a statement the same day, The the words in the op ed to inform a news defamation would give the aggrieved New York Times responded by stating, story[,] . . . sometimes there is so much party a claim. “Even under the highly “We’re confi dent that the Department the source wants to say that presenting protective standard of New York Times v. of Justice understands that the First it in op ed form is better. Wrapping it in a Sullivan, a public offi cial or fi gure would Amendment protects all American citizens news story doesn’t necessarily add much.” have a claim under these circumstances and that it would not participate in such In a September 5 interview with because this meets the test for ‘actual a blatant abuse of government power. WCCO News Talk 830 in Minneapolis, malice.’ . . . So to the extent that the The President’s threats both underscore Minn., Silha Center Director and Silha president is describing the state of the why we must safeguard the identity of Professor of Media Ethics and Law Jane law, he is simply and objectively wrong.” the writer of this op ed and serve as a Kirtley said that the Times op ed was not Actual malice is the standard created in reminder of the importance of a free the fi rst instance of a news organization Sullivan requiring proof that defendants and independent press to American taking such an action, but argued that knowingly made false statements or made democracy.” On September 13, The the timing made it more unusual. “It is statements with reckless disregard for Washington Post reported that Federal very rare for them to do this sort of thing; Bureau of Investigation (FBI) Director it’s not unheard of though,” Kirtley said. Anti-Press, continued on page 16 15 Anti-Press, continued from page 15 publication of the New York Times op ed those journalists, as well as an additional played into the ‘fake news’ narrative” 20 journalists who were killed in cases their truth or falsity. 376 U.S. 254 (1964). articulated by President Trump. She in which the motive for the killing was (Niehoff was a panelist at “The State of said, “It is always the reality [that] news unconfi rmed. Our Satirical Union: Hustler Magazine, organizations that rely on anonymous The resolution also provided several Inc. v. Falwell at 30,” a symposium held sources have to be prepared for that laws and legal frameworks recognizing April 20 21, 2018, co sponsored by the accusation, especially in our current freedom of the press, including Article Silha Center for the Study of Media Ethics environment.” 19 of the United Nations (UN) Universal and Law, the Association of American Declaration of Human Rights, adopted in Editorial Cartoonists (AAEC), the Media Organizations and Congress Paris, France in 1948, which states that Minnesota Journalism Center, and the Address President Trump’s Anti-Press “[e]veryone has the right to freedom of Hubbard School of Journalism and Mass Rhetoric opinion and expression; this right includes Communications. For more information In the summer and fall of 2018, several freedom to hold opinions without on the symposium, see “Spring media organizations, as well as the U.S. interference and to seek, receive and Symposium Marks the 30th Anniversary Senate, took different actions in response impart information and ideas through any of Hustler Magazine, Inc. v. Falwell, to President Donald Trump’s anti press media and regardless of frontiers.” Discusses History, Purpose, and Impact rhetoric and actions. Finally, the resolution included of Political Cartoons” in the Winter/Spring On Aug. 10, 2018, The Boston Globe several actions to be taken by the Senate, 2018 issue of the Silha Bulletin.) called for media outlets across the including “commend[ing] journalists and David Ardia, co director of the country to participate in a coordinated media workers around the world for their University of North Carolina (UNC) editorial response to President Trump’s essential role in promoting government Center for Media Law and Policy added escalating anti media rhetoric. On August accountability, defending democratic that “[c]asebooks are fi lled with examples 16, more than 400 news outlets, including activity, and strengthening civil society, of people who have successfully used The New York Times and the Minneapolis despite threats to the safety of those libel law to challenge false statements and Star Tribune, posted coordinated op ed journalists and media workers,” as well as portrayals in articles, books and movies.” pieces supporting U.S. journalists and “pay[ing] tribute to journalists who have President Trump’s September 5 tweet denouncing President Trump’s political lost their lives carrying out their work.” was not the fi rst instance in which attacks on the media. Each outlet wrote The resolution also stated that the Senate he suggested that libel laws should about the common theme that journalists shall “call[] on the President and the be changed in the United States. In are not “the enemy of the people.” (For Secretary of State to[,] . . . on the basis of January 2018, author Michael Wolff, who more information about The Boston the protections afforded under the First previously contributed to USA Today, Globe’s editorial, as well as threats made Amendment to the Constitution of the The Hollywood Reporter, and other media against the news outlet, see California United States, preserve and build upon outlets, authored and released a book Man Indicted by Federal Grand Gury the leadership of the United States on titled Fire and Fury: Inside the Trump after Sending Threats to The Boston issues relating to freedom of the press,” White House, which described behind the Globe in “Journalists in the United States among other actions. The full text of the scenes details about President Trump’s and Abroad Face Threats of Violence and resolution is available online at: https:// White House and administration. After Incarceration” on page 17 of this issue of www.congress.gov/bill/115th congress/ the publication of the book, President the Silha Bulletin.) senate resolution/501/text. Trump called libel laws a “sham and a On Aug. 17, 2018, the Senate President Trump’s anti press rhetoric disgrace and do not represent American unanimously passed a resolution also prompted David Kaye, the UN Special values or American fairness” during a “[r]ecognizing threats to freedom of the Rapporteur on freedom of expression, January 10 cabinet meeting. During a press and expression around the world to condemn President Trump’s attacks February rally in Fort Worth, Texas, and reaffi rming freedom of the press as on the press, warning that they “erode President Trump added, “I’m going to a priority in efforts of the Government of public trust in the media and could spark open up our libel laws so when they write the United States to promote democracy violence against journalists.” In a joint purposely negative and horrible and and good governance.” S.Res.501, statement with Edison Lanza of the false articles, we can sue them and win which was introduced by Sens. Brian Inter American Commission on Human lots of money.. . . We’re going to open up Schatz (D Hawaii), Richard Blumental Rights, Kaye said, “These attacks run those libel laws.” (For more information (D Conn.), and Chuck Schumer (D N.Y.), counter to the country’s obligations to on Wolff’s book and President Trump’s stated that “freedom of the press is a respect press freedom and international comments, see Book About the Trump cornerstone of American democracy and human rights law.” The full statement is Administration’s White House Raises is enshrined in the fi rst amendment to available online at: https://news.un.org/en/ Ethical and Legal Questions in “The the Constitution.” The resolution cited story/2018/08/1016222. Ethics of Covering President Donald statistics by the Committee to Protect Trump” in the Winter/Spring 2018 issue of Journalists (CPJ) indicating that in 2017, SCOTT M EMMEL the Silha Bulletin.) forty six journalists were killed in cases SILHA BULLETIN E DITOR In her September 5 interview with in which the motive for the killing was WCCO, Kirtley also argued that the confi rmed to be related to reporting by
16 Journalists in the United States and Abroad Face Threats of Violence and Incarceration hroughout 2018, several Khashoggi. Several media outlets reported According to BBC News on Oct. journalists in the United States on the same day that several Senate 31, 2018, Khashoggi visited the and abroad faced murder, leaders promptly declared that they were Saudi Consulate in Istanbul fi rst on incarceration, and threats of convinced MBS was “complicit” and September 28, in order to obtain a violence. On October 2, Jamal “ordered” the killing of Khashoggi. Sen. document certifying a previous divorce TKhashoggi, a prominent Saudi journalist Lindsey Graham (R S.C.) told reporters, so he could marry Turkish researcher and Washington Post columnist, was “[MBS] is a wrecking ball.. . . I think he’s Hatice Cengiz, to whom he was engaged. killed inside the Saudi consulate in complicit in the murder of Mr. Khashoggi BBC News reported that he was told that Istanbul, Turkey. to the highest level possible.” Sen. Richard he would have to pick up the document REPORTERS His death produced C. Shelby (R Ala.) agreed, stating, “[A]ll later and made an appointment to IN DANGER international evidence points to that [conclusion], that return on October 2. According to CCTV outrage and all this leads back to the crown prince.” footage released after his disappearance, brought attention to the largely He added, “This is conduct that none of us Khashoggi was seen arriving at the underreported Saudi led war in Yemen. in America would approve of in any way.” consulate at 1:14 p.m. local time on On September 12, a federal grand jury As the Bulletin went to press, additional October 2. Cengiz reportedly waited for indicted a man charged with making details about the classifi ed briefi ng and him outside the consulate for 10 hours, threatening calls to The Boston Globe the CIA’s report had not been released. but he did not reappear. in response to the news outlet’s Khashoggi was one of Saudi Arabia’s Over the next two weeks, Saudi Arabia coordinated editorial effort denouncing best known personalities, according to denied all involvement in Khashoggi’s President Donald Trump. In his calls to an October 14 New York Times profi le. disappearance. On October 5, MBS told The Boston Globe, the man repeatedly He fi rst received international attention Bloomberg that the Saudi government was referred to the press as “the enemy of in the 1980s for his coverage of the Soviet unaware of Khashoggi’s whereabouts. “We the people,” prompting several observers invasion of Afghanistan during which he hear the rumors about what happened,” to question whether President Trump’s conducted a series of interviews with he said. “He’s a Saudi citizen and we are anti press rhetoric could lead to violence Osama Bin Laden. Later in his career, very keen to know what happened to against journalists. Additionally, on Khashoggi developed strong ties to him. And we will continue our dialogue September 3, a judge in Myanmar the Saudi royal family, serving as an with the Turkish government to see what sentenced two Reuters journalists to adviser and unoffi cial spokesman for happened to Jamal there.” MBS also seven years in prison. The journalists the crown. He also worked as the editor noted that the consulate would allow were arrested several months earlier of Al-Watan, a progressive Saudi paper, Turkish offi cials to search the premises. while investigating mass killings of the in 2003 and again in 2007, but was fi red On October 6, the Consul General of Saudi Rohingya ethnic minority in Myanmar. on both occasions over controversial Arabia Mohammad al Otaibi allowed Finally, a U.S. federal judge denied a articles. Khashoggi’s relationship with Reuters journalists to tour the consulate Salvadorian journalist’s habeas corpus the crown began to weaken in 2015, after in order to prove that Khashoggi was petition on September 4, fi nding that the King Salman ascended to the throne. In not there. “I would like to confi rm journalist’s detention by Immigration and 2016, Khashoggi was banned from media that . . . Jamal is not at the consulate nor Customs Enforcement (ICE) was not appearances and tweeting about Saudi in the Kingdom of Saudi Arabia, and the retaliation for his critical reporting on U.S. Arabia after making remarks critical of consulate and the embassy are working to immigration policies. President Donald Trump’s Middle East search for him,” he told Reuters. policies. Also on October 6, The New York Washington Post Columnist Jamal Fearing escalating retribution for his Times reported that Turkish investigators Khashoggi Killed in Saudi Consulate reporting, Khashoggi fl ed to the United had determined that Khashoggi was in Istanbul States in 2017, and began contributing murdered inside the consulate. According On Oct. 2, 2018, Jamal Khashoggi, monthly columns to The Washington to Turkish offi cials who spoke to the a prominent Saudi journalist and Post. The columns were often critical Times anonymously, Khashoggi was killed Washington Post contributing columnist, of Saudi Crown Prince Mohammed bin and dismembered inside the consulate, was last seen entering the Saudi Consulate Salman, also known as MBS. According probably by a team of approximately 15 in Istanbul, Turkey. Several days later, to the Times , MBS contacted Khashoggi Saudi citizens. Turkish President Recep on October 6, Turkish investigators multiple times, asking him to “tone down” Tayyip Erdogan confi rmed the report alleged that Khashoggi was strangled his rhetoric and return home. The Times on October 23, adding that Turkish and dismembered in the consulate. On reported that Khashoggi’s friends feared investigators believed the murder was October 15, Saudi offi cials admitted that that his columns led him to be placed on “premeditated.” He added, “It is clear Khashoggi was killed inside the consulate, MBS’s “blacklist.” Additionally, the Times that this savage murder did not happened but offered differing depictions of his noted that Khashoggi was reportedly instantly but was planned.” death. planning on starting a website that would Erdogan’s report contradicted Saudi On Dec. 4, 2018, CIA Director Gina publish translated economic reports Arabia’s story. According to The New Haspel delivered a classifi ed briefi ng for showcasing the scale of corruption in York Times on October 15, Saudi Arabia a small group of Senators regarding the Arab countries. agency’s conclusions about the murder of Journalists, continued on page 18 17 Journalists, continued from page 17 The Post also reported that the Turkish against MBS over Khashoggi’s killing, government was in possession of an audio calling Saudi Arabia a “great ally.” “Our admitted that Khashoggi had been killed recording of Khashoggi’s murder, although intelligence agencies continue to assess in the consulate, but alleged that he was the recording was not released publicly. all information, but it could very well be killed as a result of an interrogation On November 12, The New York Times that the Crown Prince had knowledge gone wrong that resulted in a “brawl.” reported that, according to three people of this tragic event — maybe he did and This explanation was quickly endorsed familiar with the recording, one of the maybe he didn’t!” President Trump said in by President Trump. “It sounded to me members of the kill team can be heard the statement. “That being said, we may like maybe these could have been rogue instructing someone over the phone to never know all of the facts surrounding killers — who knows,” President Trump “tell your boss.” Turkish offi cials believe the murder of Mr. Jamal Khashoggi. In any told a group of reporters on October 15. the “boss” refers to MBS, potentially case, our relationship is with the Kingdom On October 19, The Washington Post linking him to the assassination. Bruce of Saudi Arabia.” reported that Saudi Arabia had detained O. Riedel, a former CIA offi cer, told the Also on November 20, in response 18 Saudis and fi red fi ve top offi cials in Times that “[a] phone call like that is to President Trump’s statement, Senate connection with its investigation into about as close to a smoking gun as you Minority Leader Chuck Schumer (D N.Y.) Khashoggi’s disappearance. However, are going to get.” In a statement also criticized the President’s response. “You Saudi Arabia refused Turkey’s request released on November 12, Saudi offi cials can’t just throw in some exclamations to extradite the detained individuals. denied that MBS had “any knowledge (!!!!), yell that the world is dangerous, and President Trump called the arrests whatsoever” of Khashoggi’s killing. The call it a press release,” he wrote. “That’s a “great fi rst step,” but noted that he statement also contended that Saudi not how a U.S. President responds to would like additional details about the intelligence services had been permitted the murder of a journalist and American investigation. On November 15, the Post to listen to the recording and “at no resident.” Senator Jeff Flake (R Ariz.) announced that Saudi Arabia had indicted moment was there any reference to the echoed Schumer’s sentiment. “‘Great 11 of the 18 suspects and were seeking mentioned phrase.” allies’ don’t plot the murder of journalists, the death penalty for fi ve of them. As the On November 16, however, the CIA Mr. President,” he tweeted on November Bulletin went to press, the suspects have concluded that MBS ordered Khashoggi’s 20. “‘Great allies’ don’t lure their own not been named. assassination, as reported by The citizens into a trap, then kill them.” Other observers were more skeptical Washington Post on the same day. The Committee to Protect Journalists (CPJ) of the Saudi explanation. Sen. Lindsey Post noted that CIA offi cials have “high Executive Director Joel Simon also issued Graham (R S.C.) wrote in an October 19 confi dence” in the assessment. To reach a statement criticizing President Trump’s tweet that he did not fi nd Saudi Arabia’s its conclusion, the CIA cited a phone call response. “If you boil the White House new narrative believable. “To say that I am between Khashoggi and Khalid, MBS’s Statement down to its essence, President skeptical of the new Saudi narrative about brother and the Saudi ambassador to the Trump has just asserted that if you do Mr. Khashoggi is an understatement,” he United States. In the phone call, Khalid enough business with the U.S., you are wrote. “First we were told Mr. Khashoggi bin Salman told Khashoggi that he would free to murder journalists,” he wrote. supposedly left the consulate and be safe visiting the Saudi Consulate in “That’s an appalling message to send to there was blanket denial of any Saudi Istanbul. The Post asserted that Khalid Saudi Arabia and the world.” involvement. Now, a fi ght breaks out and made the call at his brother’s request, Khashoggi’s murder also sparked he’s killed in the consulate, all without according to multiple people familiar with criticism from observers around the knowledge of Crown Prince.” Graham the call. The CIA also based its conclusion world. On Oct. 9, 2018, United Nations again addressed MBS’s involvement in about MBS’s involvement due to his role (UN) Special Rapporteur on freedom Khashoggi’s killing while a guest on “Meet in overseeing Saudi Arabia’s government, of expression David Kaye, as well as The Press” on November 18. “The fact that and his relatively stable status as de facto several other UN experts, called for an he didn’t know about it is impossible for ruler, according to the Post. On November immediate, independent investigation me to believe,” he said. “If he is going to 18, Reuters reported that President Trump into Khashoggi’s disappearance. “An be the face of Saudi Arabia going forward, said the CIA’s assessment was “very independent international investigation I think the kingdom will have a hard time premature” but still “possible.” must immediately be launched into on the world stage. They are an important However, on November 19, the the events,” he wrote in a statement. ally, but when it comes to the crown Associated Press (AP) reported that “Those responsible — perpetrators and prince, he is irrational, he is unhinged, and President Trump had said that there masterminds — should be identifi ed and I think he has done a lot of damage to the was no reason for him to listen to the brought to justice. We call on the Saudi relationship between the United States audio recording of the “very violent, and Turkish authorities to cooperate to and Saudi Arabia and I have no intention very vicious” killing of Khashoggi. In a fully resolve this case.” of working with him ever again.” November 18 interview on “Fox News On October 10, Reporters Without On Oct. 31, 2018, Turkey’s top Sunday,” President Trump said, “It’s a Borders (RSF) also advocated for an prosecutor confi rmed more details suffering tape, it’s a terrible tape. I’ve been independent international investigation about Khashoggi’s murder, but still did fully briefed on it, there’s no reason for me into Khashoggi’s disappearance and not provide any information about the to hear it.” He added, “I know everything suggested that it could be carried out location of his body, according to The that went on in the tape without having to by Kaye. The statement also stated that Washington Post on the same day. As hear it.” “more than 15 journalists and bloggers the Bulletin went to press, no further On November 20, President Trump said have been arrested in a completely information about the whereabouts of in a formal presidential statement that opaque manner in Saudi Arabia since Khashoggi’s body have been released. his administration would take no action last September.” RSF’s full statement 18 is available online at: https://rsf.org/ In an interview with the Times , Dr. are not “the enemy of the people.” (For en/news/rsf refers jamal khashoggis Mekkia Mahdi said, “We’re surprised more information on the coordinated disappearance un working group. the Khashoggi case is getting so much op ed, see “President Trump Continues Simon asked the UN to investigate attention while millions of Yemeni Anti Press Rhetoric and Actions” on page Khashoggi’s death in a letter written to children are suffering.” She added, 9 in this issue of the Silha Bulletin.) UN Secretary General António Guterres. “Nobody gives a damn about them.” On According to a criminal complaint “We believe that Khashoggi’s case November 1, Almasirah Media Network, fi led on Aug. 29, 2018 in the U.S. District requires fi rm and sustained action on a Yemeni TV channel, reported that Court for the District of Massachusetts your part to ensure that the entire truth Mohammed Ali al Houthi, a Yemeni by Federal Bureau of Investigation (FBI) about the circumstances of his death is political fi gure and former President of Special Agent Thomas M. Dalton, Chain’s discovered, including the identity of those the Revolutionary Committee, issued a threatening calls to The Boston Globe responsible for both carrying it out and statement expressing similar frustration began on Aug. 10, 2018, immediately for ordering it, and that the perpetrators with the lack of international media after the news outlet announced are tried and punished in accordance with coverage of the war in Yemen. “Although the coordinated editorial effort. The the international standards,” he wrote. every victim left behind by the illegal complaint alleged that the calls continued “The absence of resolute action by the aggression raids in Yemen deserves until Aug. 22, 2018. In one of the calls, international community, proportionate Chain threatened to the extreme gravity of the Khashoggi “The threat of violence, kidnapping or to “shoot you case, would send the wrong message motherfuckers in that governments may kill journalists death to any journalist who is seeking the head . . . shoot with impunity.” The full letter is available the truth and reporting it is dangerous every fucking one online at: https://cpj.org/2018/11/cpj calls to freedom and democracy around the of you.” On Aug. on un to investigate murder of journalis. 16, the date of php. world.” the coordinated On October 10, forty fi ve free press editorial response, organizations, including the Reporters — Society of Professional Journalists with he called journalists Committee for Freedom of the Press 45 Press Organizations “the enemy of (RCFP), the Freedom of the Press the people,” and Foundation, and the National Newspaper the same attention as Khashoggi, threatened to “kill every fucking one Association, signed onto a letter unfortunately none of the clear war of you.. . . I’m going to shoot you in the written by the Society of Professional crimes in Yemen has provoked the same fucking head later today, at 4 o’clock.” Journalists (SPJ) asking the Saudi Arabia international outrage,” he said. According to the complaint, the origin ambassador to the United States to of the calls was blocked, but authorities launch an investigation into Khashoggi’s California Man Indicted by Federal later determined that they came from a disappearance. “The threat of violence, Grand Gury after Sending Threats to landline registered to Chain’s home. The kidnapping or death to any journalist The Boston Globe complaint further alleged that, on Aug. 22, who is seeking the truth and reporting it On Sept. 12, 2018, several news 2018, a Boston Globe employee asked the is dangerous to freedom and democracy outlets reported that a federal grand caller why he was calling. Chain replied, around the world,” the letter read. “It is jury in Boston had indicted a California “[b]ecause you are the enemy of the of the utmost importance that offi cials man after he threatened to harm Boston people . . . as long as you keep attacking do everything in their power to fi nd Globe journalists in response to the the President, the duly elected President Khashoggi, return him to his fi ancée and newspaper’s coordinated editorial of the United States, in the continuation of family and hold those responsible for campaign denouncing President Donald your treasonous and seditious acts, I will his disappearance accountable.” The full Trump’s anti press rhetoric. Robert Chain continue to threats, harass, and annoy the letter is available online at: https://www. was charged with seven counts of using Boston Globe.” spj.org/news.asp?REF=1611. interstate and foreign commerce to Dalton concluded that “probable Khashoggi’s killing also brought transmit a threat to injure another person. cause exists to conclude that [Chain] increased attention to the Saudi led war Chain’s threats prompting observers transmitted in interstate commerce any in Yemen. On October 29, The New York to question whether President Trump’s communication containing any threat to Times ran a front page story detailing the anti press rhetoric could lead to violence injure the person of another, in violation largely underreported war that has lasted against journalists. of [18 U.S.C. § 875],” titled “Interstate over three years and caused what the UN On Aug. 10, 2018, The Boston Globe Communications,” which provides, deemed the “world’s worst humanitarian called for media outlets across the “Whoever transmits in interstate or crisis.” The war, led by Saudi Arabia and country to participate in a coordinated foreign commerce any communication the United Arab Emirates (UAE), initially editorial response to President Trump’s containing any threat to kidnap any started to quell Houthi rebels who seized escalating anti media rhetoric. On August person or any threat to injure the person control of western Yemen. The war 16, more than 400 news outlets, including of another, shall be fi ned under this title continued, causing widespread hunger The New York Times and the Minneapolis or imprisoned not more than fi ve years, and a cholera epidemic that killed tens of Star Tribune, posted coordinated op ed or both.” The full criminal complaint thousands of Yemeni citizens. pieces supporting U.S. journalists and is available online at: https://www. Some observers complained that denouncing President Trump’s political documentcloud.org/documents/4801584 it took the killing of a Westerner to attacks on the media. Each outlet wrote Robert Chain.html. bring international attention to the war. about the common theme that journalists Journalists, continued on page 20 19 Journalists, continued from page 19 the source, and for making the arrest. Who Took Classifi ed Documents,” in We couldn’t have asked for a stronger the Summer 2018 issue, “Reporters and On September 18, a federal grand jury response.” Leakers of Classifi ed Documents Targeted indicted Chain on seven counts under The caller’s repeated use of the phrase by President Trump and the DOJ” in the 18 U.S.C. § 875. On September 24, Chain “the enemy of the people” sparked some Summer 2017 issue, “Media Face Several pleaded not guilty to all six counts. to criticize President Trump’s rhetoric for Challenges During President Trump’s During his arraignment, a federal encouraging violence against journalists. First Months in Offi ce” in the Winter/ prosecutor stated that law enforcement Rep. Katherine Clark (D Mass.) wrote Spring 2017 issue, and “2016 Presidential was investigating whether Chain made in an Aug. 20, 2018 tweet that “[h]urling Candidates Present Challenges for Free similar calls to The New York Times and hateful and dangerous rhetoric has a real Expression” in the Summer 2016 issue.) the National Football League (NFL), impact on people’s lives. It’s perilous according to a Sept. 24, 2018 Boston Globe to think otherwise. Thank you to the Two Reuters Journalists Sentenced to story. As the Bulletin went to press, no @BostonGlobe for your unwavering Seven Years in Prison While Covering further announcements had been made in dedication to the truth, to the news, and Rohingya Killings in Myanmar the case. our country.” On Sept. 3, 2018, a judge in Myanmar In an Aug. 30, 2018 U.S. Department The same day, Daniel Schulman, the sentenced two Reuters journalists of Justice (DOJ) press release, U.S. deputy Washington, D.C. bureau chief at to seven years in prison for illegal Attorney Andrew Lelling stated that the possession of U.S. Attorney’s Offi ce would prosecute offi cial documents anyone making threats like these. “In “This man threatened to kill journalists, in violation of the the past few months, this offi ce has calling them the ‘enemy of the country’s Offi cial charged people with threatening to bomb people’.. . . Words matter. The hatred Secrets Act, India a minority commencement ceremony at Act XIX, 1923. The Harvard, threatening to shoot people at a stirred by Trump against journalists is journalists, Wa Second Amendment rally, offering money having an effect, and over time, it could Lone and Kyaw Soe to anyone who kills a federal agent, and get someone killed.” Oo, were detained mailing white powder and threatening on Dec. 12, 2017 notes to certain public fi gures,” he — Renato Mariotti, while investigating said. “Anyone — regardless of political CNN legal analyst violence against affi liation — who puts others in fear for the Rohingya their lives will be prosecuted by this ethnic minority offi ce. In a time of increasing political Mother Jones, cautioned that President in Myanmar’s Rakhine state. Observers polarization, and amid the increasing Trump’s consistent press condemnation from the international community incidence of mass shootings, members of was dangerous. “As recently as this voiced support for the journalists, and the public must police their own political morning, Trump called the media ‘the condemned Myanmar’s civilian leader, rhetoric. Or we will.” enemy of the people,’” he wrote. “He’s Aung San Suu Kyi, for allowing the Special Agent in Charge of the FBI going to get people killed.” military to silence reports of human rights Boston Division Harold Shaw said in the Also in an Aug. 20, 2018 tweet, CNN abuses in the country. same press release that Chain’s arrest legal analyst Renato Mariotti echoed In December 2017, Lone and Soe Oo should “serve as a warning to others” that Shulman’s comments. “This man were arrested by Myanmar police. At the threats will be taken seriously. “Everyone threatened to kill journalists, calling time of the arrest, the journalists were has a right to express their opinion, but them the ‘enemy of the people,’” he on assignment for Reuters, investigating threatening to kill people, takes it over tweeted. “Words matter. The hatred the deaths of 10 Rohingya men and boys the line and will not be tolerated,” he stirred by Trump against journalists in Inn Din, a coastal village in Myanmar’s said. “All threats are taken seriously, as is having an effect, and over time, it Rakhine state. On Sept. 16, 2018, The we never know if the subject behind the could get someone killed.” (For more New York Times reported that Lone and threat intends to follow through with their information on how President Trump’s Soe Oo were arrested after meeting two actions.” relationship with the press and criticism police offi cers for lunch in a restaurant In an Aug. 30, 2018 memo sent to that his rhetoric may lead to violence in Myanmar’s major city, Yangon. During employees of The Boston Globe, Vice against journalists, see “President the ensuing court proceedings, which President of Strategic Partnerships and Trump Continues Anti Press Rhetoric lasted nearly nine months, the journalists Marketing Jane Bowman commended and Actions” on page 9 in this issue asserted that the offi cers arranged the the staff for not letting the threats impact of the Silha Bulletin, Five Newspaper meeting in order to provide them with their work. “While it was unsettling for Staff Members Killed, Two Injured in information about 10 Rohingya men and many of our staffers to be threatened Shooting at Local Maryland Newsroom boys killed in Inn Din. in such a way, nobody — really, in “Journalists Face Physical Violence, According to the Times , one of the nobody — let it get in the way of the Other Dangers in the United States and offi cers, Naing Lin, handed Lone rolled up important work of this institution,” she Abroad,” and Federal Prosecutors Seize documents that allegedly contained secret said. “We are grateful to the FBI, the US Phone and Email Records of New York government information. Lone told the Attorney’s Offi ce, the Boston Police, and Times Reporter in Leak Investigation in court that the documents had “nothing to local authorities in California for the work “Trump Administration Targets Journalist, do with our conversation,” and contended they did in protecting the Globe while Leaker of Government Information, that neither he nor Soe Oo solicited them. threats were coming in, for investigating and Former Government Employees The journalists were arrested soon after 20 leaving the restaurant, before they had records or publishes or communicates” intimidation; this verdict has undermined time to look at the documents, according state secrets that might be useful to an freedom of the media in Myanmar. The to the Times . In court, Lin denied giving enemy and carries a maximum penalty of verdict has also struck a hammer blow for the journalists the documents. However, 14 years in prison, according to Frontier the rule of law.” a police captain, Moe Yan Naing, testifi ed Myanma, an English language weekly On September 20, UN Secretary that Lin was ordered to plant the magazine. General Antonio Guterres spoke with documents on Lone as part of a set up. The convictions prompted sweeping reporters at the UN, condemning the The prosecution alleged a different condemnation from Reuters, human convictions of Lone and Soe Oo. “It is story, asserting that the journalists had rights activists, and the international not acceptable to have the journalists of been detained during a routine traffi c community. In a Sept. 3, 2018 statement, Reuters being in jail for what they were shop, and then found to be in possession Reuters editor in chief Stephen J Adler doing,” he said. “It is my deep belief that of papers containing secret information, said the convictions were “a major step that should not happen and I hope that according to The Guardian on Sept. 3, backward in Myanmar’s transition to the government will be able to provide 2018. democracy,” and hinted at possible legal a pardon to release them as quickly as After the arrests, Reuters released intervention in an international forum. possible.” the results of Lone’s and Soe Oo’s “Today is a sad day for Myanmar, Reuters Human rights and free press advocacy investigation. The Feb. 2, 2018 article, journalists Wa Lone and Kyaw Soe Oo, groups also voiced their support for titled “Massacre in Myanmar,” reported and the press everywhere,” he said. the detained journalists. Tirana Hassan, that Myanmar military and paramilitary “Without any evidence of wrongdoing Amnesty International’s Director of police had taken eight Rohingya Muslim and in the face of compelling evidence of Crisis Response, released a Sept. 3, 2018 men and two teenage boys captive. The a police set up, today’s ruling condemns statement calling the verdict “appalling” article alleged that eight days before the them to the continued loss of their and “politically motivated.” “Today’s incident, military and paramilitary police freedom and condones the misconduct of verdict cannot conceal the truth of what organized Inn Din’s Buddhist residents, security forces.” happened in Rakhine State,” she said. and residents of several other villages, to The U.S. Embassy in Myanmar also “It’s thanks to the bravery of journalists burn Rohingya homes. The Rohingya were criticized the convictions in a September 3 like Wa Lone and Kyaw Soe Oo that the then reportedly forced to fl ee Inn Din and statement posted on its blog and social military’s atrocities have been exposed.” take shelter on a nearby beach. A group media accounts. “Today’s conviction Shawn Crispin, the Committee of soldiers arrived on the beach and took of journalists Wa Lone and Kyaw Soe to Protect Journalists’ (CPJ) senior the 10 men and boys away for questioning. Oo under the Offi cial Secrets Act is Southeast Asia Representative, also The men and boys were allegedly bound deeply troubling for all who support released a statement on Sept. 3, 2018, together, and villagers were invited to press freedom and the transition toward calling the convictions “a new press beat them with sticks and machetes. democracy in Myanmar,” the post said. freedom low for Myanmar.” He added, Photographs show that one of the men, “The clear fl aws in this case raise serious “[T]he process that resulted in their an Islamic teacher, was beheaded. The concerns about rule of law and judicial convictions was a travesty of justice and article claims that soldiers shot each of independence in Myanmar, and the will cast Myanmar as an anti democratic the captives two to three times, and then reporters’ conviction is a major setback pariah as long as they are wrongfully held buried them in a mass grave. The full to the Government of Myanmar’s stated behind bars.. . . We call on Myanmar’s article is available online at: https://www. goal of expanding democratic freedoms.” civilian authorities to immediately release reuters.com/investigates/special report/ The statement also advocated for the the journalists.” myanmar rakhine events/. immediate release of both journalists In a Sept. 13, 2018 press conference, According to an Aug. 27, 2018 United and encouraged the government to stop Myanmar’s civilian leader Aung San Suu Nations (UN) report, the massacre was prosecuting journalists for uncovering Kyi defended the convictions, arguing part of a larger campaign of violence human rights abuses and other matters of that Lone and Soe Oo were “not jailed against the minority Muslim Rohingya public concern. for being journalists.” “They were jailed community in Myanmar. Andrew Gilmour, U.S. Vice President Mike Pence because sentence has been passed on the UN Assistant Secretary General also voiced support for the journalists them, because the court has decided they for Human Rights, called the Rohingya in a September 4 tweet, writing, “Wa have broken the Offi cial Secrets Act,” she persecution “ethnic cleansing” and a Lone & Kyaw Soe Oo shd [sic] be said. “They have every right to appeal “campaign of terror and forced starvation commended — not imprisoned — for the judgement and to point out why the that seems to be designed to drive the their work exposing human rights judgement was wrong.” Suu Kyi was remaining Rohingya from their homes.” violations & mass killings. Freedom awarded the Nobel Peace Prize in 1991 According to the UN Refugee Agency, of religion & freedom of the press are for her work leading the opposition to the over 723,000 Rohingya refugees have fl ed essential to a strong democracy.” military junta that ruled Myanmar (then Myanmar since August 2017. British Ambassador to Myanmar Dan known as Burma) from 1962 until 2011. On Sept. 3, 2018, Reuters reported that Chugg released a September 3 statement Suu Kyi’s comments prompted Nikki Lone and Soe Oo had been sentenced on Facebook, speaking on behalf of the Haley, then U.S. Ambassador to the UN, by a Myanmar court to seven years in British Government and EU member to post a September 13 tweet, which prison for the illegal possession of offi cial states. “This case has cast a long shadow read, “First in denial about the abuse the documents. Lone and Soe Oo had pleaded over freedom of expression and the Burmese military placed on the Rohingya, not guilty to violating section 3.1.c of the rule of law in Myanmar,” he said. “In now justifying the imprisonment of the colonial era Offi cial Secrets Act, which any democracy, journalists must be free punishes anyone who “obtains, collects, to carry out their jobs without fear or Journalists, continued on page 22 21 Journalists, continued from page 21 in violation of the First, Fourth, Fifth, and After Duran Ortega’s arrest, several Fourteenth Amendments to the United organizations, including the American two Reuters reporters who reported on States Constitution.” The petition argued Civil Liberties Union (ACLU), the Society the ethnic cleansing. Unbelievable.” that Ortega was arrested while “engaged for Professional Journalists (SPJ), and in activities as a member of the press” Reporters Without Borders (RSF) North Judge Allows ICE to Detain and that the Memphis Police Department America, among others, signed a letter Salvadorian Journalist Who Spoke arrested him without probable cause. The in support of Duran Ortega written by Out Against the Agency petition further alleged that the detention Joseph Torres, the Senior Director of On Sept. 4, 2018, U.S. District Court by DHS was a direct result of the unlawful Strategy and Engagement at Free Press, for the Western District of Louisiana arrest, and that Ortega asserted was a media advocacy organization. “The Judge Dee D. Drell denied a Salvadoran attempting to comply with police orders First Amendment guarantees a free journalist’s habeas corpus petition, and wearing press credentials. The full press,” the letter read. “That means that fi nding that the detention of Manuel petition is available online at: https:// reporters like Duran can’t be subject to Duran Ortega was not retaliation for www.splcenter.org/sites/default/fi les/ censorship by the government, nor can the journalist’s critical stories about the manuel_duran_habeas_fi nal.pdf. government use any measures to prevent Department of Homeland Security (DHS), On Sept. 4, 2018, Drell denied Duran the expression of ideas before they are Immigration and Customs Enforcement Ortega’s habeas petition, fi nding fi rst published, or to punish reporters for (ICE), and local police. Duran Ortega v. that Duran Ortega’s claims against doing their job. Prior restraint by any U.S. Department of Homeland Security, the Memphis Police Department for offi cial means is clearly unconstitutional.” No. 1:18 cv 00508 (W.D. La. 2018). Several “retaliation and press suppression” were The full letter is available online at: human rights and media advocacy “moot.” He wrote, “Because Duran Ortega https://www.freepress.net/sites/default/ organizations voiced support for Duran is no longer in custody for the Tennessee fi les/2018 05/free_manuel_duran_letter_0. Ortega, contending that his arrest in April misdemeanor charges and those charges pdf. 2018 and ensuing detention by the DHS have been dismissed, this court does not In a May 3, 2018 statement, RSF North violated his First Amendment rights. have jurisdiction to relieve those charges America Bureau Director Margaux Ewen Ortega immigrated to the U.S. from under the habeas statute.” urged the U.S. government to reconsider El Salvador in 2006 after receiving Second, Drell held that Duran Ortega deporting Duran Ortega. “It is concerning death threats related to his reporting on did “not carr[y] his burden of proving that a journalist wearing his press corruption in the Salvadorian government. he [was] detained in violation of the credentials while reporting was arrested In 2007, he failed to attend an immigration United States Constitution or law.” Drell and has been held in an ICE facility for hearing, and the Atlanta Immigration reasoned that Duran Ortega did not the past month,” she said. “Manuel Duran Court entered a removal order against contest the removal order issued against Ortega came to the United States after him. As a result, his immigration case was him in 2006, and that the removal order fl eeing life threatening situations in his closed. On April 8, 2018, Duran Ortega gave ICE probable cause to detain him home country and has been well known fi led a motion to reopen his immigration “at any appropriate time.” Drell further in Memphis for covering controversial case with the Atlanta Immigration argued that Duran Ortega’s current issues related to local and federal law Court. On April 24, 2018, a Louisiana detention was not invalidated by his enforcement ever since. We urge the US Immigration judge denied the motion, allegedly unlawful arrest on April 3, 2018. government to consider the consequences holding that the DHS satisfi ed statutory Drell therefore denied Duran Ortega’s of sending an investigative journalist back notice requirements. Duran Ortega petition and dismissed the case with to a country where he has faced death appealed the decision on May 31, 2018. As prejudice. The order denying Duran threats.” the Bulletin went to press, the case was Ortega’s habeas petition is available Duran Ortega was not the fi rst currently pending in front of the Board of online at: https://www.courtlistener.com/ journalist detained by ICE. Emilio Immigration Appeals. recap/gov.uscourts.lawd.162401/gov. Gutierrez Soto, a Mexican journalist, Duran Ortega was arrested by Memphis uscourts.lawd.162401.30.0.pdf. was held in immigrant detention after his police on April 3, 2018 while reporting In a Sept. 5, 2018 interview with asylum request was denied in late 2007. on a protest against the alleged practice Law360, Michelle Lapointe, one of Duran He and his son were abruptly released of turning detained immigrants over to Ortega’s attorneys and acting deputy legal on July 26, 2018 after a judge ordered the ICE, instead of releasing them. Duran director of the Immigrant Justice Project government to justify Gutierrez Soto’s Ortega was charged with obstruction of at the Southern Poverty Law Center, continued detention. Gutierrez Soto’s a highway and disorderly conduct, both criticized the detaining of Duran Ortega. lawyers argued that he was detained misdemeanor charges. The charges were “It is frustrating that the government because he is an outspoken critic of U.S. dropped two days later, but instead of persists in imprisoning, for months on immigration policies, citing a document being released, Ortega was transferred end, a respected journalist and beloved that showed he was on a list used by ICE into DHS custody and remained in LaSalle community member who has committed to target immigrants for arrest, usually Detention Center in Jena, La. no crime and whose deportation has reserved for people suspected of violent On April 13, 2018, Duran Ortega fi led been stayed by the immigration courts,” crimes. a petition for a writ of habeas corpus, she said. “While we’re disappointed which are used in order to allow detainees by the court’s decision not to order KIRSTEN N ORDSTROM to challenge the legality of their detention. Manuel’s release from detention while SILHA R ESEARCH A SSISTANT In the petition, Duran Ortega asserted that he fi ghts his immigration case, we will he was being detained “in order to punish continue to advocate for him and the First and suppress his speech as a journalist, Amendment principles he stands for.” 22 President Trump Prevails in Two Federal Courts’ First Amendment Rulings, Faces New First Amendment Lawsuit n fall 2018, President Donald protect unrefi ned, disagreeable, and even persons to create or engage in a riot.” Trump prevailed in two First hurtful speech to ensure that we do not “Riot” is defi ned as “a public disturbance Amendment cases in federal court. stifl e public debate.” involving an assemblage of fi ve (5) or On September 11, the U.S. Court The case arose on March 1, 2016 more persons which by tumultuous and of Appeals for the Sixth Circuit during a campaign rally conducted at violent conduct creates grave danger Iheld that then Republican presidential the Kentucky International Convention of damage or injury to property or candidate Trump did not “incite a riot” Center in Louisville, Ky. The rally was persons[.]” when he called for security to remove organized by Donald J. Trump for McKeague explained the defi nition protestors at President, Inc. (Trump campaign), a includes fi ve elements: “(1) incitement FIRST a March 2016 Virginia corporation. Plaintiffs Kashiya (2) of fi ve or more persons (3) to engage AMENDMENT rally. During Nwanguma, Molly Shah, and Henry in a public disturbance (4) involving his 35 minute Brousseau, all residents of Kentucky, tumultuous and violent conduct speech, Trump repeatedly said “get attended the rally with the intention of (5) creating grave danger of personal ’em out of here” in reference to the peacefully protesting. injury or property damage.” McKeague protestors, leading to an altercation On fi ve different occasions, Trump held that the plaintiffs’ allegations with several of Trump’s supporters. On called on security to “get ’em out of here” “fail[ed] to make out a valid incitement October 15, Judge S. James Otero of U.S. in the midst of his 35 minute speech. to riot claim under Kentucky law” District Court for the Central District Trump also said “don’t hurt ’em” in at because the statements uttered by Trump of California granted an anti SLAPP least one instance. In response, members “[did] not make out a plausible claim for special motion brought by President of the audience assaulted, pushed, and incitement to engage in tumultuous and Trump, dismissing a defamation lawsuit shoved plaintiffs, and Brousseau was violent conduct creating grave danger of fi led by adult fi lm actress Stormy punched in the stomach, according to personal injury or property damage.” He Daniels regarding an April 2018 tweet the Sixth Circuit. Defendants Matthew added, “The notion that Trump’s direction in which President Trump questioned Heimbach and Alvin Bamberger, Ohio to remove a handful of disruptive her credibility. The lawsuit marked residents and supporters of Trump, were protesters from among hundreds or the latest legal battle stemming from a in the audience during the rally and thousands in attendance could be 2016 settlement agreement between the participated in the assaults. Video of the deemed to implicitly incite a riot is actress and President Trump’s former rally is available online at: https://www. simply not plausible — especially where attorney, Michael Cohen, that attempted youtube.com/watch?v=ES6ZOQr6GeA. any implication of incitement to riotous to keep her silent about her alleged affair In May 2016, the plaintiffs fi led a violence is explicitly negated by the with Trump in 2006. complaint in the Jefferson County Circuit accompanying words, ‘don’t hurt ’em.’” Meanwhile, on October 16, literary Court in Louisville alleging state law tort McKeague next turned to the U.S. and human rights group PEN American claims for battery, assault, incitement Supreme Court’s ruling in Brandenburg Center, Inc. (PEN America) fi led a to riot, as well as negligence, gross v. Ohio , 395 U.S. 444 (1969), in which the First Amendment lawsuit in the U.S. negligence, and recklessness against Court recognized “the principle that the District Court for the Southern District Trump, the Trump campaign, Heimbach, constitutional guarantees of free speech of New York against President Donald Bamberger, and an unknown woman and free press do not permit a State to Trump in an effort to stop him and his who punched Brousseau. Because of forbid or proscribe advocacy of the use administration from “retaliate[ing]” the diversity of citizenship, the case was of force or of law violation except where or “threaten[ing] retaliation” against moved to the U.S. District Court for the such advocacy is directed to inciting or journalists and media organizations when Western District of Kentucky where the producing imminent lawless action and is he disagrees with their coverage. court initially refused to dismiss the likely to incite or produce such action.” incitement to riot and negligence claims, The Supreme Court also established Sixth Circuit Holds that Presidential but later concluded that the negligence a test that precludes speech from being Candidate Trump Did Not Incite a claim was “incompatible with the First sanctioned as incitement to riot unless Riot at 2016 Rally Amendment.” Nwanguma v. Trump, 273 “(1) the speech explicitly or implicitly On Sept. 11, 2018, the U.S. Court of F. Supp. 3d 719 (W.D. Ky. 2017). encouraged the use of violence or lawless Appeals for the Sixth Circuit held that Judge David McKeague wrote the action, (2) the speaker intends that his then Republican presidential candidate majority opinion of the Sixth Circuit, speech will result in the use of violence Donald Trump did not “incite a riot” which fi rst addressed the plaintiffs’ claim or lawless action, and (3) the imminent when he called for security to remove that Trump incited a riot, a misdemeanor use of violence or lawless action is the protestors at a March 2016 rally, under the Kentucky Penal Code, Ky. likely result of his speech,” as interpreted which led to an altercation between Rev. Stat. § 525.040, and actionable in by the Sixth Circuit in Bible Believers v. the protesters and some of Trump’s damages under Ky. Rev. Stat. § 446.070. Wayne Cty., Mich ., 805 F.3d 228, 246 (6th supporters. Nwanguma v. Trump, 903 The Kentucky statute provides that “[a] Cir. 2015) (en banc). F.3d 604 (6th Cir. 2018). The Sixth Circuit person is guilty of inciting to riot when held that the United States has “chosen to he incites or urges fi ve (5) or more First Amendment, continued on page 24 23 First Amendment, continued from page 23 that plaintiffs have failed to state a granted a special motion brought by claim under Kentucky law, there is no President Donald Trump under the McKeague concluded that the case need to reach the constitutional issue, Texas anti SLAPP statute to dismiss a law derived from the Brandenburg and we should not offer our advisory defamation lawsuit fi led by adult fi lm test “makes clear . . . that, even if opinion on whether if the speech had actress Stormy Daniels regarding an plaintiffs’ allegations could be deemed violated the incitement statute, it April 2018 tweet in which President to make out a plausible claim for would nevertheless be protected by the Trump questioned her credibility. Otero incitement to riot under Kentucky First Amendment, thus rendering the found that President Trump’s tweet law, the First Amendment would not statute unconstitutional as applied.” constituted “‘rhetorical hyperbole’ permit prosecution of the claim.” He The full majority opinion and White’s normally associated with politics and reasoned that the “speaker’s intent concurrence are available online at: public discourse in the United States,” to encourage violence . . . and the http://www.opn.ca6.uscourts.gov/ and was therefore protected by the tendency of his statement to result in opinions.pdf/18a0202p 06.pdf. First Amendment. Previously, on Sept. violence . . . are not enough to forfeit Greg Belzley, a lawyer for 24, 2018, several news outlets reported First Amendment protection unless the protesters, told Politico in a that during a hearing on the same the words used specifi cally advocated September 11 email that he disagreed day, Otero had said that the tweet by the use of violence, whether explicitly with the Sixth Circuit’s ruling. “I’m having President Trump appeared to be free or implicitly.” In this case, although a very diffi cult time understanding the speech that “lies at the heart of the [First] President Trump’s words “[i]n the ears Court’s ruling — that unless the actual Amendment” and was “political speech” of some supporters . . . may have had a words objectively advocate violence on a “matter of public concern.” tendency to elicit a physical response, in completely detached from their context, Daniels, whose real name is Stephanie the event a disruptive protester refused it doesn’t matter that the speaker Clifford, reached a settlement with to leave, but they did not specifi cally intended to incite violence or that the President Trump’s former attorney, advocate such a response.” same words have incited violence in the Michael Cohen, in the weeks leading up McKeague also cited Snyder v. past.” He added, “It is a frightening ruling to the 2016 election, according to CNN Phelps, 562 U.S. 443 (2011), in which even under the best of circumstances, on Sept. 8, 2018. The agreement included the Supreme Court held that the First but a license for a reckless authoritarian a $130,000 payment to Clifford in Amendment protects the picketing of to stretch the limits.” exchange for her silence about an alleged military funerals by the Westboro (Kan.) In a September 11 email to BuzzFeed affair with Trump in 2006. The agreement Baptist Church, despite the sensitive News, Dan Canon, another lawyer for the became the subject of a lawsuit between context and the pain infl icted by the protesters, criticized Trump’s comments President Trump and Clifford. As the picketers’ speech on the family of the at the rally. “Mr. Trump, throughout Bulletin went to press, the case remained fallen Marine. (For more information on his campaign, intentionally used ongoing. Snyder v. Phelps, see “Supreme Court crowd violence to suppress dissident On April 17, Clifford’s attorney, Ruling Protects Funeral Picketers” in speech — the kind of core speech that Michael Avenatti, released a forensic the Winter/Spring 2011 issue of the Silha the First Amendment traditionally artist’s sketch of a man who Clifford Bulletin.) protects. The Court’s opinion today claimed threatened her with harm in McKeague concluding by citing Chief gives him a free pass for that conduct, 2011 if she spoke about the 2006 affair, Justice John Robert’s line “Speech even though he had publicly been according to the Los Angeles Times on is power” from Snyder v. Phelps. asking for violence to occur at these September 24. On March 25, Clifford He continued, “Yet, as a nation, we rallies for months, and even though his told CBS’s “60 Minutes” that the man have chosen to protect unrefi ned, co defendants have said they would approached her in a parking lot in Las disagreeable, and even hurtful speech not have attacked our clients if Trump Vegas and said, while looking at her to ensure that we do not stifl e public had not directed them to do so,” Canon young daughter, that it would be a shame debate. The First Amendment demands said. “Allowing a candidate for public if “something happened to her mom.” governmental tolerance of speech, in the offi ce to use the First Amendment as On April 18, President Trump name of freedom, subject to “a limited a shield under these circumstances is tweeted, “A sketch years later about number of categorical exclusions.. . . The unprecedented and dangerous.” a nonexistent man. A total con job, speech that forms the premise for Canon and Belzley both said that playing the Fake News Media for Fools plaintiffs’ incitement to riot claim does the plaintiffs planned to “seek further (but they know it)!” The tweet was in not come within any of these limited review,” though they did not clarify response to another tweet by Twitter exclusions.” whether they would appeal the case to user “RealShennaFox” who posted the In a short concurrence, Judge Helene the Supreme Court or ask for an en banc sketch next to an image of Clifford with N. White wrote that the majority opinion review by the full Sixth Circuit. As the her husband, who bears a resemblance to “elide[d] salient details of Trump’s Bulletin went to press, no further actions the man in the sketch. speech” and “overemphasize[d] the had been taken in the case. On April 30, Clifford fi led a defamation legal signifi cance of the ‘don’t hurt ‘em’ lawsuit against President Trump in the statement.” However, she agreed with the Federal Judge Dismisses Defamation Southern District of New York. The majority’s ruling because she “agree[d] Lawsuit Brought By Stormy Daniels lawsuit alleged that President Trump’s that the allegations are insuffi cient Against President Trump tweet “falsely attacks the veracity of to constitute incitement to riot under On Oct. 15, 2018, Judge S. James Ms. Clifford’s account of the threatening Kentucky Revised Statutes § 525.040.” Otero of U.S. District Court for incident that took place in 2011. It White added, “Given our agreement the Central District of California also operates to accuse Ms. Clifford of 24 committing a crime under New York law, the motion contended her complaint he was “troubled that there’s a claim as well as the law of numerous other failed to do. here for defamation.” According to states, in that it effectively states that Finally, the motion argued that the CNN on the same day, Otero called the [she] falsely accused an individual of lawsuit was “nothing more than a public tweet “political hyperbole” and “opinion committing a crime against her when no relations move by Plaintiff and her protected by free speech.” Business such crime occurred.” outspoken lawyer to obtain still more Insider reported that Otero called the Thus, the lawsuit alleged that publicity and attention.” The motion tweet “free speech by a public offi cial on President Trumps’ tweet was “false added, “This suit improperly injects a matter of public concern.” and defamatory.” It further alleged that the United States courts into what is According to the Los Angeles President Trump made the statement effectively a public debate involving a Times , when Avenatti told Otero “this knowing it was “false or was made with major politician and one (or two) of his was not political by any stretch of the reckless disregard for the truth or falsity public antagonists. This suit is designed imagination,” Otero interrupted and of the statement,” which would satisfy to chill the President’s free speech rights contended that the tweet seemed to be the actual malice standard created in on matters of public concern.” protected speech by a public offi cial New York Times v. Sullivan requiring Additionally, because Clifford is a about a public fi gure. President Trump’s proof that defendants knowingly made citizen of Texas, the motion cited the lawyer, Charles Harder, agreed, stating false statements or made statements Texas anti strategic litigation against that the tweet was “all done in this with reckless disregard for their truth or public participation (SLAPP) statute, hyperbolic context of the political realm.” falsity. 376 U.S. 254 (1964). Additionally, the Texas Citizens Participation Act Harder, of Harder, Mirell, and Abrams the complaint argued that the tweet was (TCPA), which allows courts to dismiss LLP, is best known for his victorious defamation per se. The full complaint is defamation suits against defendants who lawsuit against media gossip website available online at: https://www.dropbox. “exercise . . . the right to free speech,” Gawker on behalf of former professional com/s/cghg5fwc42lh7y7/Complaint. meaning “a communication made in wrestler Hulk Hogan, as well as his more pdf?dl=0. connection with a matter of public recent legal attacks on technology news On Aug. 9, 2018, CNN, The Hill, and concern.” Tex. Civ. Prac. & Rem. Code website TechDirt and women’s website Politico reported that Southern District § 27.001 et seq. The statute requires Jezebel. (For more information on Harder of New York Judge Jesse M. Furman that the plaintiff present “clear and and his lawsuits against media outlets, ordered that the lawsuit be moved to specifi c evidence” in opposition to a see “Attorney Charles Harder Continues California federal court. Clifford had motion to dismiss in support of “each Attacks on News Websites by Filing previously been opposed to the move, of the essential elements of Plaintiff’s Defamation Suits” in the Fall 2017 issue but consented to transfer the case. defamation claim.” The motion asserted of the Silha Bulletin, “Gawker Shuts Avenatti explained that her legal team that Clifford had failed to do so. Down After Losing Its Initial Appeal of had “determined that it would allow The motion also cited $140 Million Judgment in Privacy Case” us to proceed with a deposition of Mr. California’s anti SLAPP statute, in the Summer 2016 issue, and “Gawker Trump more expeditiously and also likely Cal. Code Civ. Proc. § 425.16, which Faces $140 Million Judgment after Losing result in a much faster trial.” President requires that a plaintiff show, in response Privacy Case to Hulk Hogan” in the Trump’s lawyers had previously argued to an anti SLAPP motion, that there is a Winter/Spring 2016 issue.) that the case should be moved for several probability that she will prevail on the Otero concluded the hearing by asking reasons, including that the defamation claim. The motion argued that because Harder whether President Trump wanted case was related to other lawsuits President Trump’s tweet was protected Clifford to cover the president’s legal brought by Clifford against President opinion, was not defamatory per se, fees if the case were dismissed, to which Trump, according to CNN. and did not fall under the actual malice Harder responded, “Yes.” On Aug. 27, 2018, President Trump standard, Clifford could not show “any Outside the courthouse, Avenatti told fi led a motion to dismiss the defamation probability that she will prevail on her reporters that there was a “palpable lawsuit, contending that Clifford’s claim,” meaning her case would be irony” in Harder’s free speech argument suit was barred by several defamation dismissed and that attorney’s fees would on behalf of a president who “wants to doctrines, including fi rst that President be awarded to President Trump. The jail journalists,” according to the Los Trump’s tweet was “protected opinion” full motion is available online at: https:// Angeles Times. because politicians, “in the course of www.courthousenews.com/wp content/ On Oct. 15, 2018, Otero granted public debate, are entitled to enter uploads/2018/08/Stormy Trump Trump President Trump’s special motion to the debate and express their beliefs, ANTISLAPP.pdf. (For more information dismiss Clifford’s complaint pursuant to including their disbeliefs, of the claims of on anti SLAPP statutes, see “Several the TCPA. Otero fi rst found that Clifford’s their adversaries.” State Courts and Legislatures Grapple lawsuit was related to President Trump’s Second, the motion argued that with Anti SLAPP Laws” in the Summer “right of free speech on an issue of public Clifford could not prove that she had 2017 issue of the Silha Bulletin.) concern,” meaning the TCPA “applies to suffered any damages as a result of On September 24, the Los Angeles the Special Motion to Dismiss/Strike.” her tweet and was instead “making Times reported that Otero said that Otero next determined whether money . . . as a result of her disputes President Trump’s tweet looked like Clifford established a prima facie case with the President,” citing her numerous free speech that “lies at the heart of the for defamation, which meant she had appearances on national television. [First] Amendment.” He reasoned that to allege that: “(1) Mr. Trump published Third, the motion asserted that Clifford it was “the type of political discourse a false statement; (2) that defamed Ms. is a “clear public fi gure,” meaning she and commentary that takes place in would have to prove actual malice, which elections all the time,” and added that First Amendment, continued on page 26 25 First Amendment, continued from page 25 the letter she signed! She knows nothing [The Washington Post], whose accurate about me, a total con!” coverage of his Administration the Clifford; (3) with the requisite degree On Dec. 3, 2018, Bloomberg reported President fi nds objectionable.” One such of fault regarding the truth of the that President Trump had requested that action was an executive order directing statement[;] . . . and (4) damages.” Clifford pay double his attorney’s fees in the U.S. Postal Service to review its Regarding whether President Trump order to deter future frivolous lawsuits. fi nancial practices, such as the shipping published a false statement, Otero ruled As the Bulletin went to press, Otero had rates it offers to companies like Amazon. that the tweet constituted “‘rhetorical not ruled whether Clifford would be Another example was President hyperbole’ normally associated with required to pay the proposed $778,806. Trump’s “public threat[] . . . to use the politics and public discourse in the [U.S. Department of Justice’s (DOJ)] United States.” He added, “The First PEN America Files First Amendment antitrust merger review process to Amendment protects this type of Lawsuit Against President Trump, retaliate against CNN for its news rhetorical statement.” Otero therefore Alleges He Retaliated Against Media coverage” in regards to the proposed granted the special motion to dismiss. Outlets and Journalists merger between Time Warner, which Nevertheless, Otero wrote that “[i]n On Oct. 16, 2018, literary and human is CNN’s parent company, and AT&T. the interest of completeness, the Court rights group PEN American Center, Inc. PEN America stated that although a briefl y addresses the other arguments (PEN America) announced in a press subsequent lawsuit by the DOJ to block made by the parties in the briefi ng.” release that it had fi led a lawsuit in the the merger did not succeed in federal Otero held that Clifford’s “focus on the U.S. District Court for the Southern court, the litigation still cost CNN’s actual malice argument comes as no District of New York against President parent company “signifi cant resources.” surprise because Plaintiff stands on thin Donald Trump in an effort to “stop [him] PEN America’s complaint also alleged ice in asserting that Mr. Trump’s tweet is from using the machinery of government that President Trump had threatened an actionable statement.” He continued, to retaliate or threaten reprisals to challenge broadcast licenses for “Instead, Plaintiff seeks to use her against journalists and media outlets television stations owned by or carrying defamation action to engage in a ‘fi shing for coverage he dislikes.” The lawsuit NBC, as well as other networks. expedition’ concerning the conclusory acknowledged that President Trump’s Additionally, the complaint cited the allegations in the Complaint. The Court anti press rhetoric was protected by the White House banning CNN reporter will not permit Plaintiff to exploit the First Amendment, but that there was Kaitlan Collins from a Rose Garden legal process in this way.” “lots of evidence” to demonstrate that press conference for asking questions Otero further ruled that President he had taken several actions in violation the White House deemed “inappropriate” Trump was entitled to “reasonable” of the First Amendment’s protections of in July 2018. (For more information on attorney’s fees under the TCPA. free speech and freedom of the press. the White House blocking Collins from Otero’s full ruling is available online The lawsuit began by explaining its the press conference, see “Journalists at: https://www.documentcloud.org/ desire to prevent President Trump’s Face Physical Violence, Other Dangers documents/5002740 Clifford v Trump “offi cial acts . . . intended to stifl e in the United States and Abroad” in the Order Granting Anti SLAPP Motion.html. exercise of the constitutional protections Summer 2018 issue of the Silha Bulletin.) On October 15, Avenatti tweeted of free speech and a free press.” More PEN America’s complaint cited several photos of a notice of appeal be fi led in specifi cally, the lawsuit alleged that U.S. Supreme Court First Amendment the U.S. Court of Appeals for the Ninth President Trump’s “retaliatory directives” cases, including New York Times v. Circuit. The tweet is available online and “credible public threats to use Sullivan, in which the court found that at: https://twitter.com/MichaelAvenatti/ his government powers against news the First Amendment refl ects “a profound status/1051995988276047872. As the organizations and journalists who have national commitment to the principle Bulletin went to press, no further reported on his statements, actions, and that debate on public issues should be announcements had been made in the policies in ways he does not welcome” uninhibited, robust, and wide open, case. violated the First Amendment’s and that it may well include vehement, Avenatti also tweeted, “Trump’s protections of free speech and press caustic, and sometimes unpleasantly contrary claims are as deceptive as freedom. sharp attacks on government and public his claims about the inauguration The lawsuit continued, “President offi cials.” 376 U.S. 254, 270 (1964). attendance.” Harder countered in an Trump has thus intentionally hung a The complaint also cited the 1936 October 15 statement, “No amount of sword of Damocles over the heads of case Grosjean v. American Press Co., spin or commentary by Stormy Daniels countless writers, journalists, and media in which the Supreme Court wrote that or her lawyer, Mr. Avenatti, can truthfully entities, including members of [PEN “[t]he newspapers, magazines, and other characterize today’s ruling in any way America]. His actions seek to accomplish journals of the country, it is safe to say, other than total victory for President indirectly what the President cannot have shed and continue to shed, more Trump and total defeat for Stormy do directly: impede professional and light on the public and business affairs of Daniels.” investigative journalism, and silence the nation than any other instrumentality In a tweet the following day, President criticism.” of publicity; and since informed Trump quoted a Fox News headline, PEN America’s complaint included public opinion is the most potent of which read, “Federal Judge throws out several examples, including President all restraints upon misgovernment, Stormy Danials lawsuit versus Trump. Trump “repeatedly call[ing] for the suppression or abridgement of the Trump is entitled to full legal fees” action to punish the online retailer publicity afforded by a free press cannot and wrote, “Great, now I can go after Amazon because Jeff Bezos, its be regarded otherwise than with grave Horseface and her 3rd rate lawyer in the chief shareholder and CEO, owns concern.” 297 U.S. 233, 250 (1936). Great State of Texas. She will confi rm 26 Although the lawsuit deplored action against any person or entity in In an October 16 interview with the President Trump’s anti press rhetoric, retaliation for speech that the President AP, PEN America CEO Suzanne Nossel including his repeated references to or his Administration do not like.” said, “Media organizations are focused several media outlets as “fake news” and The Associated Press (AP) noted on on covering the news objectively and journalists as “enemies of the American October 16 that PEN America did not providing the essential transparency and people,” it conceded that such speech seek monetary redress beyond “costs, accountability that is the work of a free is protected by the First Amendment including attorneys’ fees,” and other press.” She added, “Every organization and was not the basis of the lawsuit. “relief as the Court deems just and has to make their own determination Nevertheless, the lawsuit reiterated that proper.” of how best to play their role in this President Trump “has done more than to The full lawsuit is available online environment. That media organizations exercise his right to denounce his critics. at: https://pen.org/wp content/ might determine to focus on journalism He has threatened to engage, and has uploads/2018/10/PEN America v Trump should not mean that the President’s engaged, in conduct intended to retaliate Complaint.pdf. As the Bulletin went to violations go unchallenged by those against specifi c news organizations and press, no announcements had been made affected by them.” journalists whose content and viewpoints in the case. In an interview with The Guardian displease him.” (For more information In an October 16 statement, David on the same day, PEN America president on President Trump’s anti press rhetoric, A. Schulz, co director of the Media Jennifer Egan argued that although see “Journalists in the United States Freedom and Information Access Clinic, President Trump’s anti press did not and Abroad Face Threats of Violence a Yale Law School program serving violate the First Amendment, “[t]his is and Incarceration” and “The New York as co counsel with the nonprofi t, not to say that routine public denigration Times Publishes Op Ed by Senior nonpartisan Protect Democracy in the by the president . . . has no impact. On Trump Administration Offi cial, Drawing lawsuit, said “We wouldn’t be fi ling the contrary, Trump’s repeated cries of Criticism from President Trump and this lawsuit if we didn’t think it would ‘fake news’ have eroded faith in the press Some Observers” in this issue of the Silha be meritorious.. . . There is so much and smudged the distinction between Bulletin.) evidence of the president’s motives.” truth and propaganda.” She continued, Thus, PEN America sought two (Schulz delivered the 29th Annual Silha “But the president has done more than remedies for President Trump’s Lecture, titled “See No Evil: Why We vent against the press: he has threatened “unconstitutional actions aimed at Need a New Approach to Government to use his presidential powers to stymie suppressing speech: “(a) declaring Transparency” on Oct. 16, 2014. For reporters and news organisations, and that Defendant Trump’s retaliatory more on the lecture, see “29th Annual has followed through on those threats.” acts violate the First Amendment, and Silha Lecture Examines the Right to (b) enjoining [President Trump] from Access Government Information in the SCOTT M EMMEL directing any offi cer, employee, agency, Wake of National Security and Privacy SILHA BULLETIN E DITOR or other agent or instrumentality of the Concerns” in the Fall 2014 issue of the United States government to take any Silha Bulletin.)
The Silha Bulletin is available online at the University of Minnesota Digital Conservancy.
Go to: http://conservancy.umn.edu/discover?query=Silha+Bulletin to search past issues.
27 First Amendment Coalition Sues Department of Justice Over Secret Collection of Journalist’s Telephone and Email Records n Sept. 19, 2018, the phone number of hers,” though they did the Summer 2012 issue, “The Obama First Amendment not obtain the content of the messages. Administration Takes on Government Coalition (FAC) fi led The records spanned several years, Leakers; Transparency May be a a lawsuit against the including a period in which Watkins Casualty” in the Winter/Spring 2012 U.S. Department of and Wolfe were dating. issue, “Judge Rebukes Government on OJustice (DOJ) in an effort to force the The Times stated that although Leak Prosecutions” in the Summer 2011 disclosure of records related to the this was “the fi rst known instance of issue, “Open Government Advocates seizure of New York Times reporter the Justice Department going after Criticize Obama’s Prosecution of Ali Watkins’ a reporter’s data under President Leakers” in the Winter/Spring 2011 confi dential Trump,” the practice had occurred issue, and “The Media and the Military: FOIA telephone and under President Barack Obama’s Guantanamo Access Rules Loosened; email records by administration, which pursued at Other Guidelines Set to Limit Leaks” in President Donald least nine leak related prosecutions, the Fall 2010 issue.) Trump’s administration. The complaint the most of any administration. Criticism of such practices alleged that the DOJ failed to respond For example, in May 2013, the DOJ conducted by the Obama to two Freedom of Information Act notifi ed the Associated Press (AP) that administration prompted the DOJ (FOIA), 5 U.S.C. § 552, requests by telephone records listing incoming to rewrite its guidelines “regarding FAC, each of which could provide and outgoing numbers of individual obtaining information from, or information of “overwhelming public AP reporters, the general AP offi ce records of, members of the news interest” regarding whether the DOJ numbers in New York, Washington, media; and regarding questioning, followed its own guidelines in obtaining D.C., and Hartford, Conn., as well as arresting, or charging members of Watkins’ records. the main number for AP reporters in the news media.” Under 28 CFR § Previously, on June 7, 2018, The the U.S. House of Representatives press 50.10, the DOJ, when “determining New York Times reported that federal gallery, had been obtained from the whether to seek information prosecutors had secretly seized AP’s telephone providers. Also in 2013, from, or records of, members of Watkins’ phone and email records as the DOJ named Fox News reporter the news media” must “strike the part of an investigation into alleged James Rosen as a co conspirator proper balance among several vital classifi ed leaks by former U.S. Senate during a leak investigation of a State interests: Protecting national security, aid James A. Wolfe, who was arrested Department offi cial in order to obtain ensuring public safety, promoting on the same day on three counts of e mails from Rosen’s Google account. effective law enforcement and the lying to federal authorities. (For more (For more information on the secret fair administration of justice, and information on the investigation into subpoenas of the AP, see “Justice safeguarding the essential role of the Wolfe, see Former U.S. Senate Staffer Department Secretly Subpoenas free press in fostering government Pleads Guilty to Lying to the FBI, Associated Press Phone Records” accountability and an open society.” Avoids Charges Under Espionage Act in the Winter/Spring 2013 issue of Investigators must clear three in “Investigations, Prosecutions, and the Silha Bulletin and “Department additional hurdles when seeking Sentencing Continue In Government of Justice Revises Guidelines for journalists’ records, including that Leak Cases” on page 38 of this issue Investigating Journalists” in the “the information sought is essential of the Silha Bulletin and Federal Summer 2013 issue. For more to the successful investigation or Prosecutors Seize Phone and Email information on the targeting of Rosen, prosecution,” that the “government Records of New York Times Reporter see “Attorney General Holder Leaves should have made all reasonable in Leak Investigation in “Trump Problematic Legacy on Press Rights attempts to obtain the information Administration Targets Journalist, and Civil Liberty” in the Fall 2014 issue from alternative, non media sources,” Leaker of Government Information, of the Silha Bulletin. For more on the and that “[t]he government should have and Former Government Employees Obama administration’s prosecution pursued negotiations with the affected Who Took Classifi ed Documents” in the of individuals under the Espionage member of the news media.” Summer 2018 issue.) Act, see “President Barack Obama However, exceptions allow the The national security division of the Leaves Mixed Legacy on Government DOJ to secretly obtain records if U.S. attorney’s offi ce in Washington, Transparency” in the Fall 2016 issue of prior notice “would pose a clear and D.C. notifi ed Watkins of the seizure in a the Silha Bulletin, “Attorney General substantial threat to the integrity of February 2018 letter, which the Times Holder Leaves Problematic Legacy on the investigation, risk grave harm learned of on June 7, 2018. According Press Rights and Civil Liberties” in the to national security, or present an to the Times , prosecutors had “years Fall 2014 issue, Manning, Kiriakou Face imminent risk of death or serious of customer records and subscriber Punishment for Blowing the Whistle bodily harm.” The full regulations are information from telecommunications on the War on Terror” in the Winter/ available online at: https://www.law. companies, including Google and Spring 2013 issue, “Leaks: New Policies cornell.edu/cfr/text/28/50.10. Verizon, for two email accounts and a Emerge; Congress Gets Involved” in 28 The Times reported that it was “not the DOJ’s acquisition of the records of ability of reporters to carry out their clear whether investigators exhausted New York Times reporter Ali Watkins.” mission, enshrined under the United all of their avenues of information The complaint alleged one count States Constitution, to report on before confi scating [Watkins’] against the DOJ for “Failure to matters of public interest and to hold information” and that she had not been Provide Notice of Determination the government accountable.” notifi ed until well after the records and Produce Records Under FOIA.” FAC added that the “ability of were seized. DOJ spokeswoman The complaint explained that FOIA journalists to communicate with Sarah Isgur Flores said in a June 10 requires that agencies must present sources and to report on matters statement that the department had a “determination” within 20 business of public concern is substantially “fully complied” with its internal days of a request. The deadline can jeopardized when the government guidelines in deciding to seize Ms. be extended by 10 days, but only can freely intrude upon the Watkins’s records.” She added, in “unusual circumstances.” The journalist source relationship by “Leak investigations are absolutely complaint asserted that because collecting information about such intended to have a chilling effect on communications.” leaks.. . . That’s a perfectly legitimate “It’s absolutely critical that the DOJ The complaint objective from the government’s point provide this information to the public so cited the DOJ’s of view. You don’t want people to leak guidelines, which classifi ed information.” all can understand when, how and why recognize that Nevertheless, several media experts the DOJ is collecting records of journalist “freedom of the and advocates criticized the move, communications — and if they are press can be no including Bruce Brown, executive broader than director of the Reporters Committee overreaching in doing so.” the freedom of for Freedom of the Press (RCFP), members of the who wrote in a June 8 statement that — David Snyder, news media to “[s]eizing a journalist’s records sends First Amendment Coalition executive director investigate and a terrible message to the public and report the news,” should never be considered except and that the as the last resort in a truly essential “the time in which the DOJ was guidelines were put in place “to provide investigation.” (For more information required to give FAC the required protection to members of the news on the seizure of Watkins’ records determination has passed” and FAC media from certain law enforcement and criticism by media experts and “exhausted its administrative remedies tools . . . that might unreasonably advocates, see Federal Prosecutors in connection with its FOIA requests,” impair newsgathering activities.” Seize Phone and Email Records of the organization was entitled to relief, The complaint sought the public New York Times Reporter in Leak including an injunction compelling the disclosure of “agency records and Investigation in “Trump Administration production of the requested records. communications that would reveal, Targets Journalist, Leaker of The complaint also provided among other things, whether and to Government Information, and Former several reasons why the disclosure what extent the DOJ considered and/or Government Employees Who Took of the documents sought by FAC was followed the Guidelines in the case Classifi ed Documents” in the Summer important and necessary. First, the of Ms. Watkins.” One such document 2018 issue of the Silha Bulletin.) complaint alleged that neither Watkins, could be “any correspondence or According to a Sept. 19, 2018 nor her employers, including The New memos addressing: whether the DOJ FAC press release, the nonprofi t York Times , Buzzfeed, and Politico, believed the Guidelines applied in Ms. organization submitted two FOIA appeared to have been made aware of Watkins’ case” or whether an exception requests in June 2018 seeking “records the government’s “use of legal process applied. FAC also sought declaratory relating to whether and how DOJ to collect these records until long after relief that the DOJ was in violation provided any notice to Watkins or the the collection had begun.” of FOIA for failing to notify FAC of New York Times, as well as whether Second, the complaint claimed that its determination as to whether it the DOJ followed its own internal “[b]ased on the information publicly would comply with its FOIA requests. guidelines for using legal process reported to date, it does not appear that The full complaint is available online to obtain confi dential journalist the DOJ followed the Guidelines in Ms. at: https://fi rstamendmentcoalition. information.” The DOJ failed not only Watkins’ case. And, if it did, it is not org/wp content/uploads/2018/09/ to release any documents, but also apparent why or if the DOJ believed FACvDOJComplaint 1.pdf. to provide an “initial determination” exceptional circumstances existed In the September 19 press release, in response to the FOIA request, such that it could forego notice to Ms. FAC Executive Director David Snyder according to the press release. Watkins about the extensive collection said, “It’s absolutely critical that the On September 19, FAC fi led a lawsuit of her phone and email records.” DOJ provide this information to the against the DOJ in the U.S. District Finally, the complaint contended public so all can understand when, how Court for the Northern District of that the question of whether the and why the DOJ is collecting records California, challenging the department’s DOJ followed its guidelines “is of of journalist communications — and if “failure . . . to fulfi ll FAC’s requests for overwhelming public interest” because they are overreaching in doing so.” records concerning the government’s the government’s “use of legal process” secret collection of the phone and to obtain confi dential records of SCOTT M EMMEL email records of journalists, specifi cally journalists “directly threatens the SILHA BULLETIN E DITOR 29 Brett Kavanaugh Sworn In as the 114th U.S. Supreme Court Justice n July 9, 2018, President On September 4, the Senate Judiciary and Justice Kennedy administered the Donald Trump nominated Committee, which is made up of 21 judicial oath, according to a Supreme U.S. Court of Appeals for senators, including 11 Republicans Court spokesperson on the same day. the D.C. Circuit Judge Brett and 10 Democrats, began Kavanaugh’s On October 8, President Trump held Kavanaugh to fi ll the vacant confi rmation hearings, with the a ceremonial swearing in at the White Oseat on the U.S. Supreme Court after Democratic senators calling for more House. Associate Justice Anthony Kennedy time to review thousands of pages Following President Trump’s announced his retirement two weeks of documents related to Kavanaugh, nomination of Kavanaugh, observers earlier. Following including his time in President George highlighted several notable First W. Bush’s administration as White House Amendment cases in which he wrote SUPREME COURT a contentious confi rmation Staff Secretary and in the White House a majority, concurring, or dissenting NEWS process, Kavanaugh Counsel’s offi ce. opinion, or joined the majority of the was confi rmed On September 12, The Intercept court while serving on the D.C. Circuit. as the 114th Supreme Court justice by reported that Sen. Dianne Feinstein One “classic free speech” case highlighted the U.S. Senate on October 6, and was (D Calif.), the ranking Democrat on the by attorney Ken White in a July 10, ceremonially sworn in during an event Judiciary Committee, had received a 2018 post on his blog “Popehat” was hosted by President Trump two days letter detailing an accusation against Initiative & Referendum Institute v. U.S. later. Several observers contended that Kavanagh, but withheld the letter Postal Service, 794 F.3d 21, 24 (D.C. Cir. Kavanaugh had an “expansive view” of from her colleagues. The full story is 2015). Kavanaugh wrote the unanimous the First Amendment and that he may be available online at: https://theintercept. ruling of the D.C. Circuit in which he “protective” of First Amendment rights, com/2018/09/12/brett kavanaugh held that a Postal Service regulation including free speech and freedom of the confi rmation dianne feinstein/. that “ban[ned] . . . collecting signatures press, though not in all circumstances. Later that day, CNN reported that the on perimeter sidewalks” violated that However, observers also raised concern Federal Bureau of Investigation (FBI) First Amendment because it caused “an about Kavanaugh’s Fourth Amendment forwarded the letter to the White House impermissible ‘chill’ on plaintiffs’ First jurisprudence, arguing that he often Counsel’s offi ce in accordance with Amendment rights,” despite the fact that supported government interests, such as guidelines for conducting background the Postal Service, in 2002, had announced national security, over individuals’ Fourth checks. Four days later, The Washington that it would not enforce the prohibition. Amendment rights. Post ran a story in which Stanford White argued that the ruling demonstrated On June 27, 2018, Justice Kennedy sent University Professor Christine Blasey Ford that Kavanaugh “has applied the First a letter to President Trump announcing accused Kavanaugh, along with his friend Amendment vigorously to protect speech.” that he was retiring after 30 years on Mark Judge, of trapping her in a room Kavanaugh’s full ruling is available online the Court. Justice Kennedy, who was and sexually assaulting her during a party at: https://caselaw.fi ndlaw.com/us dc nominated to the Court by President in high school. The full story is available circuit/1708234.html. Ronald Reagan in 1987 and was sworn online at: https://www.washingtonpost. In an Aug. 7, 2018 SCOTUSblog post, in on Feb. 18, 1988, authored or joined com/investigations/california professor William & Mary Law School Professor several important opinions in signifi cant writer of confi dential brett kavanaugh Timothy Zick pointed to Boardley v. First and Fourth Amendment cases. letter speaks out about her allegation U.S. Department of Interior, 615 F.3d Observers contended that Justice of sexual assault/2018/09/16/46982194 508 (D.C. Cir. 2010), in which Kavanaugh Kennedy left a strong legacy on First b846 11e8 94eb 3bd52dfe917b_story. joined the unanimous opinion written by Amendment jurisprudence, but that he html?noredirect=on&utm_term=. Judge Janice Rogers Brown. The court left more of a mixed legacy on Fourth d00eb0f1ed9d. Additional accusations held that a law making it “unlawful to Amendment and privacy matters. (For were raised against Kavanagh, including engage in expressive activities within any more information on Justice Kennedy’s by Deborah Ramirez, one of Kavanaugh’s of this [United States’] 391 national parks retirement and legacy, see “U.S. Supreme former classmates at Yale, in a September unless a park offi cial fi rst issues a permit” Court Justice Anthony Kennedy 23 story in The New Yorker. was unconstitutional on its face and was Retires, Leaves Strong Legacy on First On September 27, both Ford and “antithetical to the core First Amendment Amendment Jurisprudence, Mixed Legacy Kavanagh testifi ed before the Judiciary principle that restrictions on free speech on Fourth Amendment” in the Summer Committee, for which the Republican in a public forum may be valid only if 2018 issue of the Silha Bulletin.) senators hired a sex crimes prosecutor to narrowly tailored.” The D.C. Circuit found On July 9, President Trump announced conduct the line of questioning for them. that “[r]equiring individuals and small that he was replacing Justice Kennedy The full video of the hearing is available groups to obtain permits before engaging with Kavanaugh, a former clerk of Justice online at: https://www.youtube.com/ in expressive activities within designated Kennedy who had served for 12 years on watch?v=OZ7ovA37u 0. ‘free speech areas’ (and other public the D.C. Circuit. Kavanaugh graduated After an additional investigation by forums within national parks) violated from Yale University in 1987 with a the FBI into the allegations, on October 6, the First Amendment.” The full ruling is Bachelor of Arts cum laude in American the full Senate voted 50 48 to confi rm available online at: https://caselaw.fi ndlaw. history. Kavanaugh graduated from Yale Kavanaugh. Chief Justice John Roberts com/us dc circuit/1534174.html. Law School in 1990. administered the constitutional oath 30 However, White noted that Kavanaugh and Mahoney had alternative channels to Kavanaugh wrote the unanimous also applied traditional First Amendment communicate his messages. opinion of the D.C. Circuit and held that exceptions in some cases. For example, Kavanaugh, in a concurring opinion, Kahl was a “limited purpose public fi gure” in Al Bahlul v. United States, 767 F.3d 1, agreed with the majority’s conclusion that because there was “public controversy 75–76 (D.C. Cir. 2014), the D.C. Circuit the statute constituted “a reasonable time, concerning the 1983 shootout” and that addressed a challenge to the conviction place, and manner restriction for purposes he had “thrust [himself] to the forefront” of Ali Hamza Ahmad Suliman al Bahlul of First Amendment doctrine.” However, of the controversy by “[using] his access (Bahlul), who was accused of creating he wrote separately “because [he did] not to the press to promote his cause.” As a Al Qaeda recruitment videos aimed want the fog of First Amendment doctrine result, Kahl had to prove actual malice. at inciting viewers to kill Americans. to make this case seem harder than it Kavanaugh ruled that Kahl had not Kavanaugh wrote an opinion concurring is.” Kavanaugh further wrote, “No one demonstrated that BNA acted in such in part and dissenting in part in which has a First Amendment right to deface a way, including because BNA “acted he argued that “even if the First government property.. . . When, as here, reasonably in reviewing its report,” among Amendment did apply to Bahlul’s speech the Government applies a restriction other reasons. in Afghanistan, the Supreme Court “has on defacement in a content neutral and RCFP noted that in his decisions, made clear that the First Amendment viewpoint neutral fashion, there can be Kavanaugh recognized that “[c]ostly and does not protect speech such as Bahlul’s no serious First Amendment objection.” time consuming defamation litigation that is ‘directed to inciting or producing Kavanaugh’s full opinion is available can threaten” the “essential freedoms” of imminent lawless action and is likely to online at: https://www.courtlistener.com/ speech and of the press. He wrote, “To incite or produce such action,’” citing the opinion/219205/mahoney v doe/. preserve First Amendment freedoms and “incitement” standard articulated by the In a July 2018 report, the Reporters give reporters, commentators, bloggers, Supreme Court in Brandenburg v. Ohio, Committee for Freedom of the Press and tweeters (among others) the breathing 395 U.S. 444 (1969). Kavanaugh’s (RCFP) discussed several additional areas room they need to pursue the truth, the full opinion is available online at: of First Amendment jurisprudence in Supreme Court has directed courts to https://caselaw.fi ndlaw.com/us dc which Kavanaugh has ruled. According to expeditiously weed out unmeritorious circuit/1672966.html. the RCFP report, Kavanaugh “has written defamation suits.” Kavanaugh’s full ruling In Mahoney v. Doe, 642 F.3d 1112 (D.C. favorably with respect to the ‘actual is available online at: https://law.justia. Cir. 2011), the D.C. Circuit addressed malice’ standard as articulated in New com/cases/federal/appellate courts/ the constitutionality of the Washington, York Times v. Sullivan , which sets him cadc/16 7033/16 7033 2017 05 09.html. D.C. Defacement Statute, D.C. Code apart from the late Justice [Antonin] Kavanaugh’s First Amendment § 22–3312.01, which makes it “unlawful Scalia, who famously disagreed with the jurisprudence also includes his views for any person or persons willfully and unanimous decision in that 1964 civil on net neutrality. In 2017, Kavanaugh wantonly to disfi gure . . . [or] to write, rights era case.” 376 U.S. 254 (1964). dissented in the D.C. Circuit’s denial mark, or print obscene or indecent fi gures Actual malice is the standard created in of petitions for en banc review of representing obscene or objects upon . . . Sullivan requiring proof that defendants United States Telecom Ass’n v. Federal Any property, public or private, building, knowingly made false statements or made Communications Commission, 855 statue, monument, offi ce, public passenger statements with reckless disregard for F.3d 381 (D.C. Cir. 2017). In 2016, a vehicle, mass transit equipment or facility, their truth or falsity. three judge panel of the D.C. Circuit dwelling or structure of any kind.” In this For example, in Kahl v. Bureau of had upheld the Federal Communication case, the Rev. Patrick Mahoney notifi ed National Affairs, Inc., 856 F.3d 106 (D.C. Commission’s (FCC) 2015 “net neutrality” the Metropolitan Police Department Cir. 2017), the D.C. Circuit grappled with rules reclassifying broadband and (MPD) and the Department of the Interior a case involving Yorie Von Kahl, who was applying prohibitions on ISP’s that that he planned to “carry out a sidewalk convicted in federal court for murdering prevented them from blocking, throttling, chalk demonstration in front of the White two U.S. Marshals during a 1983 shootout, or prioritizing content. The court also House” in order to “protest President and was sentenced to life in prison. Kahl held that “[c]ommon carriers have long [Barack] Obama’s position on abortion, repeatedly spoke to the media and the been subject to nondiscrimination and and to protest the anniversary of the public in an effort to publicize his desire equal access obligations akin to those Supreme Court’s decision in Roe v. Wade, that his conviction be overturned and imposed by the rules without raising any 410 U.S. 113 (1973).” The MPD responded sentence vacated. In June 2005, Kahl fi led First Amendment question.” (For more that it would likely be in violation of the a mandamus petition in the Supreme information on net neutrality and the Defacement Statute. Court, asking that his sentence be vacated. U.S. Telecom Ass’n decision, see “FCC The D.C. Circuit held that the District The Bureau of National Affairs, now Repeal of Net Neutrality Takes Effect, of Columbia “may prohibit defacement known as Bloomberg BNA (BNA), which Faces Continued Legal and Legislative of Pennsylvania Avenue in front of the provides professionals with information Opposition” in the Summer 2018 issue White House” and that the restriction on regarding governmental affairs, among of the Silha Bulletin, “FCC Repeals Mahoney’s chalking was a “content neutral other areas, summarized the petition in Net Neutrality, Prompts Legal Action regulation.” The court further held that the one of its publications: Criminal Law and Legislation” in the Winter/Spring District of Columbia met the “intermediate Reporter. Kahl sued BNA for defamation, 2018 issue, “D.C. Circuit Upholds ‘Net scrutiny” standard because it had a arguing that it “falsely reported that Neutrality’ Rules” in the Summer 2016 “substantial” interest in controlling the the sentencing judge . . . had said that issue, “New FCC Rules Spur Heated esthetic appearance of the street in Kahl lacked contrition and believed the Debate about Net Neutrality Regulation” front of White House, the statute was murders were justifi ed.” suffi ciently tailored to serve this interest, Kavanaugh, continued on page 32 31 Kavanaugh, continued from page 31 Sprigman contended that the ISPs could Kavanaugh’s full opinion is available argue that “selling user data to advertisers online at: https://caselaw.fi ndlaw.com/ in the Winter/Spring 2015 issue, “D.C. counts as ‘speech’ also protected by the us dc circuit/1667197.html. A full list of Circuit Strikes Down FCC ‘Net Neutrality’ First Amendment” and, if that were the opinions written by Kavanaugh regarding Rules” in the Winter/Spring 2014 issue, and case, the government “would have to FOIA is available on the bottom of RCFP’s “Debates Continue Over Net Neutrality as show an important interest that they are report, which is available online at: https:// FCC Nears Decision on ‘Open Internet’” in pursuing narrowly . . . and that just makes www.rcfp.org/kavanaugh. the Fall 2014 issue.) it much more diffi cult for the government One fi nal area of First Amendment On May 1, 2017, the D.C. Circuit to regulate it.” CNBC concluded that this law in which Kavanaugh has ruled is refused to rehear the case en banc, fi nding would “spell trouble for state efforts to campaign fi nance. Perhaps most notably, that such a review “would be particularly legislate data privacy protections if they in Republican National Committee v. unwarranted at this point in light of the were challenged in the Supreme Court.” Federal Election Commission, Kavanaugh uncertainty surrounding the fate of the On Nov. 5, 2018, Kavanaugh recused upheld a campaign fi nance law that FCC’s Order.” In his dissent, Kavanaugh himself from the vote in which the limited contributions to national, state, wrote that although the 2015 order “is one Supreme Court declined to grant and local political parties against a First of the most consequential regulations ever certiorari in U.S. Telecom. Observers Amendment challenge. 816 F.3d 113 (D.C. issued by any executive or independent noted that he probably did so because he Cir. 2016). RCFP explained that these agency in the history of the United had already ruled in the case. (For more limitations, which are often referred States[,] . . . [it] is unlawful and must be information on the Court declining to hear to as “soft money bans” had previous vacated, however, for two alternative and the case, see “Repeal of Net Neutrality been upheld by the Supreme Court in independent reasons.” Continues to Face Legal Uncertainty” on McConnell v. FEC, 540 U.S. 93 (2003). First, Kavanaugh argued that Congress page 34 of this issue of the Silha Bulletin.) In his opinion, Kavanaugh “rejected “did not clearly authorize the FCC to issue RCFP also discussed several opinions the RNC’s arguments that their the net neutrality rule” because it “has written by Kavanaugh regarding the intended uses of soft money fell outside never enacted net neutrality legislation Freedom of Information Act (FOIA), the McConnell precedent.” He wrote, or clearly authorized the FCC to impose 5 U.S.C. § 552, and government “This particular argument is another common carrier obligations on Internet transparency. For example, in National way of asking us to overrule McConnell’s service providers [(ISPs)].” Security Archive v. Central Intelligence holding with respect to the ban on soft Second, he contended that the 2015 Agency, 752 F.3d 460 (D.C. Cir. 2014), money contribution to national political net neutrality rules violated the First the D.C. Circuit determined whether the parties. As a lower court, we of course Amendment. Kavanaugh cited Turner Central Intelligence Agency (CIA) could have no authority to do so.” Kavanaugh’s Broadcasting System, Inc. v. FCC, 512 withhold one of the draft volumes of CIA full opinion is available online at: https:// U.S. 622 (1994), Turner Broadcasting staff historian Dr. Jack B. Pfeiffer’s 1973 scholar.google.com/scholar_case?case= System, Inc. v. FCC, 520 U.S. 180 (1997), fi ve volume opus about the now infamous 1640495782400720370&q=Republican+ and Miami Herald Publishing Co. v. “Bay of Pigs invasion” in 1961. Volumes I National+Committee+v.+FEC&hl=en& Tornillo , 418 U.S. 241 (1974), as evidence and III had previously been revised and as_sdt=4,140. that the First Amendment “bars the released to the public, and the drafts of RCFP argued that now that Kavanaugh [g]overnment from restricting the editorial Volumes II and IV were also released. is on the Supreme Court, he will have discretion of [ISPs], absent a showing However, the draft of Volume V was not “freer rein to depart from precedent” that an [ISP] possesses market power in released, prompting the National Security related to campaign fi nance law. RCFP’s a relevant geographic market.” He found Archive, a non profi t research institute, to discussion of Kavanaugh’s rulings related that the FCC had “not even tried to make submit a FOIA request for the fi nal volume to campaign fi nance is available online at: a market power showing” and that the in 2005. https://www.rcfp.org/kavanaugh. 2015 rules “transform[ed] the Internet by Kavanaugh wrote the majority opinion, Taken as a whole, some experts have imposing common carrier obligations on in which he held that the CIA could argued that Kavanaugh has a strong Internet service providers and thereby withhold the draft under Exemption 5 record on First Amendment and free prohibiting Internet service providers to FOIA, which protects “inter agency speech jurisprudence. On Aug. 27, 2018, from exercising editorial control over or intra agency memorandums or letters “The Vetting Room,” a blog run by several the content they transmit to consumers.” which would not be available by law to attorneys from across the United States, Kavanaugh’s dissenting opinion is a party other than an agency in litigation argued that Kavanaugh has “generally available online at: https://www.cadc. with the agency.” More specifi cally, the taken an expansive view of First uscourts.gov/internet/opinions.nsf/06F CIA invoked the “deliberative process Amendment rights, showing a willingness 8BFD079A89E13852581130053C3F8/$fi privilege,” a form of executive privilege to strike down regulations that impinge, le/15 1063 1673357.pdf. that covers deliberative, pre decisional even slightly, on First Amendment In a July 12, 2018 interview with CNBC, communications within the Executive territory,” including in free press cases, Christopher Sprigman, a law professor Branch. Kavanaugh reasoned that the such as Kahl v. Bureau of National at New York University who authored draft volume would “expose the agency’s Affairs, Inc. an amicus brief submitted to the D.C. decision making process.” He added, White asserted in his July 10 blog post Circuit in favor of net neutrality, asserted “[T]o require release of drafts that never that Kavanaugh’s “many opinions on free that Kavanaugh’s argument in his dissent result in fi nal agency action would speech issues . . . trend very protective that ISPs have a First Amendment right discourage innovative and candid internal of free speech, both in substance and in to determine what data they transmit proposals by agency offi cials and thereby rhetoric. His opinions are consistent with implies that “the data itself is speech.” contravene the purposes of the privilege.” the Supreme Court’s strong protection 32 of free speech rights this century.” out in a July 20, 2018 SCOTUSblog is not considered a search under the White continued, “People who buy into post that Kavanaugh also argued that Fourth Amendment.” Kavanaugh further the “conservatives are weaponizing the installment of the device, rather reasoned that “[e]ven if the bulk collection the First Amendment” narrative will than its use, may have violated the of telephony metadata constitutes a see him as a strong advocate of that Fourth Amendment because it was “an search, the Fourth Amendment does not movement, in that he has applied the First unauthorized physical encroachment bar all searches and seizures. It bars only Amendment to campaign fi nance laws, on the property of the suspect’s car,” unreasonable searches and seizures. And telecommunications regulation, and other necessitating the full D.C. Circuit to the Government’s metadata collection aspects of the regulatory state. But he’s rehear the case. Kavanaugh’s full opinion program readily qualifi es as reasonable also demonstrated fi delity to free speech is available online at: http://volokh. under the Supreme Court’s case law” principles in classic speech scenarios.” com/wp/wp content/uploads/2010/11/ (emphasis in original). Kavanaugh’s full Observers also discussed Kavanaugh’s MaynardDenial.pdf. opinion is available online at: https:// Fourth Amendment jurisprudence, According to Kerr, Justice Scalia scholar.google.com/scholar_case?cas highlighting two cases in particular. largely adopted this approach in his e=18099556907815522361&hl=en&as_ First, Kavanaugh dissented in the denial majority opinion, which Kerr referred to sdt=6&as_vis=1&oi=scholarr#[1]. of rehearing en banc for United States as the pre Katz trespass test, meaning an RCFP noted in its report that “[a]s v. Jones , 1:05 cr 00386 ESH 1 (D.C. Cir. alternative to the “reasonable expectation far as we can tell, Judge Kavanaugh has 2010). The case arose from the arrest of privacy” standard set in Katz v. United not issued a signifi cant opinion in a case of Washington, D.C. resident Antoine States, 389 U.S. 347 (1967). involving the traditional privacy torts: Jones, who was the owner of D.C.’s The second case highlighted by invasion of privacy, false light, public “Levels” nightclub, and was suspected of observers regarding Kavanaugh’s Fourth disclosure of private facts, or rights to drug traffi cking. During an investigation Amendment jurisprudence was Klayman publicity. Such cases are comparatively by a joint FBI and Metropolitan Police v. Obama , 805 F.3d 1148 (D.C. Cir. 2015), rare in the D.C. Circuit given its limited Department (MPD) task force, law which focused on the constitutionality geographic jurisdiction.” enforcement obtained a warrant to install of the National Security Agency’s (NSA) In a Sept. 3, 2018 opinion piece for The the GPS device on his car from a federal interpretation of Section 215 of the Patriot Hill, Michael Macleod Ball, the president judge in Washington, D.C., but by the time Act to allow the bulk collection of data, of 627 Consulting, LLC, an advocacy it was installed on his car in Maryland, including the phone numbers dialed by and management advisor to non profi t the warrant had expired. The government millions of Americans. U.S. District Court organizations, argued that Kavanaugh’s tracked the car’s movements for 28 days, for the District of Columbia Judge Richard “lifetime seat on the Supreme Court raises creating more than 2,000 pages of data. Leon ruled that the plaintiffs “[had] troubling concerns about our right to be A federal court sentenced Jones to standing to challenge the constitutionality free of unwarranted government oversight life imprisonment after he was convicted of the Government’s bulk collection and in an age of expanding capacity to engage of conspiracy to distribute and possess querying of phone record metadata, that in surveillance without our knowledge,” with intent to distribute 50 grams or they have demonstrated a substantial citing Jones and Klayman. more of cocaine base, in violation of likelihood of success on the merits of Ball also cited Kavanaugh’s dissent 21 U.S.C. §§ 841 and 846. The D.C. Circuit their Fourth Amendment claim, and that in United States v. Askew, 529 F.3d 1119 reversed his conviction, fi nding that the they will suffer irreparable harm absent (D.C. Cir. 2008) in which the full D.C. police violated Jones’ Fourth Amendment preliminary injunctive relief.” He stayed Circuit held that “the police violated the rights when it used the tracker to any remedy, however, while the appeal Fourth Amendment rights of a suspect gather extensive information about his was pending. by unzipping his jacket to search him whereabouts. The Supreme Court later According to Kerr in his July 10 without a warrant after a stop and ruled in the case, with fi ve justices, SCOTUSblog post, the D.C. Circuit frisk produced no results.” Kavanaugh though not all in Justice Antonin Scalia’s sent the case back to the district court argued that the search was “justifi ed as a majority opinion, concluding that “longer on procedural grounds and, because reasonable continuation of the stop and term GPS monitoring in government the Section 215 program was about to frisk.” Similarly, in National Federation investigations of most offenses impinges expire, Leon ruled that the program was of Federal Employees v. Vilsack, 681 F.3d on expectations of privacy.” 565 U.S. unlawful and refused to grant a stay. The 483 (D.C. Cir. 2012), Kavanaugh dissented 400, 412 (2012). (For more information D.C. Circuit issued an administrative stay from the court’s invalidation of a random on United States v. Jones, see the following day, leading the plaintiffs drug testing program for U.S. Forest “Warrantless GPS Tracking Violates to request an emergency petition for Service employees at Job Corps Civilian Fourth Amendment; White House Defends rehearing en banc, which the D.C. Circuit Conservation centers. Warrantless Surveillance,” in the Spring denied. Ball added, “Kavanaugh’s record of 2012 issue of the Silha Bulletin.) In a concurrence for denying rehearing, repeatedly deferring to executive power In his dissent to the denial of rehearing, Kavanaugh ruled in favor of the NSA, and narrowing Fourth Amendment Kavanaugh “viewed with skepticism the fi nding that “the Government’s metadata rights is out of step with advocates of D.C. Circuit’s ‘aggregation approach,’ collection program is entirely consistent all ideological stripes who value the where one’s reasonable expectation of with the Fourth Amendment.” He cited fundamental importance of individual privacy in otherwise public movements Smith v. Maryland, 442 U.S. 735 (1979), privacy.” increases along with the volume of data in which the Supreme Court held that collected,” according to RCFP. However, government “collection of [telephone] SCOTT M EMMEL University of Southern California (USC) metadata from a third party such as a SILHA BULLETIN E DITOR Professor of Law Orin Kerr pointed telecommunications service provider 33 Repeal of Net Neutrality Rules Continues to Face Legal Uncertainty he repeal of the Federal Net neutrality is the principle that (D.C. Cir. 2018). Multiple technology and Communication Commission’s Internet Service Providers (ISPs) internet companies, including Mozilla (FCC) net neutrality rules on should treat all data on the internet Corporation and Vimeo, Inc., and public Dec. 14, 2017 continues to be the same, regardless of the source. In interest organizations, including Free fraught with legal challenges. February 2015, the FCC adopted the Press and Public Knowledge, as well as TOn Nov. 5, 2018, the U.S. Supreme Court 2015 Open Internet Order, Protecting INCOMPAS, a trade association whose denied certiorari to review an earlier and Promoting the Open Internet, which members include streaming services, challenge to the FCC’s authority to implemented rules that reclassifi ed edge providers, and competitive carriers, implement net broadband internet access as a such as Facebook, Google, and Netfl ix, NET neutrality rules “telecommunications service” under fi led similar lawsuits against the FCC. U.S. Telecom Title II of the Communications Act. This As the Bulletin went to press, the D.C. NEUTRALITY in Assoc. v. Fed. action provided the FCC the authority to Circuit had not announced a ruling Comm. Comm’n, regulate ISPs. The Open Internet Order regarding the lawsuits, which were 825 F. 3d 674 (D.C. Cir. 2016). Although also included three “bright line” rules merged into one case on March 12, 2018. plaintiffs and legal experts were prohibiting ISPs from (1) blocking lawful Mozilla v. FCC, No. 18 1051 (D.C. Cir. unsurprised with the denial because the internet content, (2) slowing down the 2018). FCC had already rolled back the rules, speed of content delivery for specifi c Additionally, several state legislatures other observers raised legal questions applications or services, a practice and governors took actions to protect regarding the repeal process. known as throttling, and (3) paid net neutrality. On March 6, 2018, On Sept. 30, 2018, California Gov. prioritization, which would allow ISPs to Washington Gov. Jay Inslee signed Jerry Brown signed into law SB 822, favor some internet traffi c over others. House Bill 2282, making Washington the “California Internet Consumer On June 14, 2016, the D.C. Circuit the fi rst state to pass a law protecting Protection and Net Neutrality Act of upheld the Open Internet Order in a net neutrality. The law requires “[a]ny 2018.” The law enacts net neutrality 2 1 decision, ruling that the FCC had person providing broadband internet rules similar to those in the 2015 Open the authority to implement the Order access service in Washington state [to] Internet Order, 80 Fed. Reg. 19,738 and that ISPs should provide equal publicly disclose accurate information (Apr. 13, 2015) (codifi ed at 47 C.F.R. 1), access to all users. U.S. Telecom Assoc. regarding the network management previously enforced by the FCC and v. Fed. Comm. Comm’n , 825 F.3d 674 practices, performance characteristics, later repealed in December 2017, 80 Fed. (D.C. Cir. 2016). However, on Dec. 14, and commercial terms of its broadband Reg. 19,738 (Apr. 13, 2015) (codifi ed at 2017, the FCC voted 3 2 to repeal its internet access services.” The law 47 C.F.R. 1). On the same day, the U.S. net neutrality rules in a Declaratory also prohibits blocking and throttling Department of Justice (DOJ) fi led a Ruling, a Report and Order, and an Order “lawful content, applications, services, lawsuit in the U.S. District Court for the tilted “Restoring Internet Freedom” or nonharmful devices,” as well as Eastern District of California to block (collectively “Order”). The Order “[engaging] in paid prioritization.” On the California law from going into effect fi rst “[r]estor[ed] the classifi cation of April 10, Oregon Gov. Kate Brown signed on Jan. 1, 2019, arguing California lacks broadband Internet access service as a similar law, HB 4155, which prohibits suffi cient authority to regulate ISPs. an ‘information service’” as it had been a public body from contracting “with However, on October 26, California classifi ed prior to the 2015 Open Internet a broadband Internet access service Attorney General Xavier Becerra and Order. Second, the Order “[adopted] provider” that (a) Engages in paid the DOJ agreed to postpone litigation transparency requirements that ISPs prioritization [or] (b) Blocks lawful pending a separate case before the U.S. disclose information about their content, applications or services or Court of Appeals for the D.C. Circuit practices to consumers, entrepreneurs, nonharmful devices,” among other involving challenges to the FCC’s and the Commission.” Finally, the FCC actions. repeal. eliminated the rules preventing blocking, (For more information on net Finally, on Sept. 20, 2018, The New throttling, and paid prioritization. On neutrality, see “FCC Repeal of Net York Times fi led a complaint in the U.S. Feb. 22, 2018, the FCC published the new Neutrality Takes Effect, Faces Continued District Court for the Southern District rules in the Federal Register, though the Legal and Legislative Opposition” in of New York requesting a judicial order rules did not immediately take effect. the Summer 2018 issue of the Silha to compel the FCC to release records The repeal faced immediate backlash Bulletin, “FCC Repeals Net Neutrality, regarding the public comment period through legal and legislative efforts. Prompts Legal Action and Legislation” associated with the 2017 repeal of net On Feb. 22, 2018, twenty two state in the Winter/Spring 2018 issue, “D.C. neutrality rules. New York Times Co. v. attorneys general and the attorney Circuit Upholds ‘Net Neutrality’ Rules” FCC, No. 1:18 cv 08607 (S.D.N.Y. 2018). general of Washington, D.C., in an in the Summer 2016 issue, “New FCC The Times made its fi rst Freedom of effort to preserve the net neutrality Rules Spur Heated Debate about Net Information Act (FOIA), 5 U.S.C. § 552, rules passed in the 2015 Open Internet Neutrality Regulation” in the Winter/ request in June 2017, as well as several Order, formally re fi led their petition Spring 2015 issue, “D.C. Circuit Strikes subsequent attempts to narrow its for review in the D.C. Circuit against Down FCC ‘Net Neutrality’ Rules” in the request, each of which were denied by the FCC. New York v. FCC, No. 18 1055 Winter/Spring 2014 issue, and “Debates the FCC. 34 Continue Over Net Neutrality as FCC market power in a relevant geographic Chief Justice Roberts and Justice Nears Decision on ‘Open Internet’” in the market,” which the FCC failed to do. Kavanaugh recused themselves from Fall 2014 issue.) (For more information on Justice participating in the Supreme Court’s Kavanaugh, see “Brett Kavanaugh Sworn deliberations. Although neither cited Supreme Court Denies Certiorari in in as the 114th U.S. Supreme Court a reason, Amy Howe of SCOTUSBlog Net Neutrality Appeal Justice” on page 30 of this issue of the reported that Justice Kavanaugh recused On Nov. 5, 2018, the U.S. Supreme Silha Bulletin.) himself because he had participated in Court voted 4 3 to deny certiorari to In their petition for certiorari, the cases during his time on the D.C. review and vacate the U.S. Court of trade groups representing AT&T Inc., Circuit. Additionally, Bloomberg News Appeals for the D.C. Circuit’s decision Verizon Communications Inc., and reported that Chief Justice Roberts in U.S. Telecom Assoc. v. Fed. Comm. other broadband providers argued recused himself because, according to Comm’n, 825 F. 3d 674 (D.C. Cir. 2016). fi nancial disclosure Both Chief Justice John Roberts and reports, he owned Justice Brett Kavanaugh recused “[T]he Court’s denial eliminated one Time Warner stock themselves from the vote. Supporters opportunity for opponents to chip at the end of 2017. of net neutrality praised the decision, away at the validity of the (former) [net Time Warner was arguing that courts would now likely acquired by AT&T follow the D.C. Circuit’s decision in neutrality] rules or the [FCC’s] authority in June 2018. U.S. Telecom upholding of the Federal to create and enforce them.” Several plaintiffs Communication Commission’s (FCC) in the case said previous 2015 Open Internet Order — Stan Adams, the denial of cert establishing net neutrality rules, Democracy and Technology legal counsel was expected, 80 Fed. Reg. 19,738 (Apr. 13, 2015) given that the (codifi ed at 47 C.F.R. 1). FCC repealed In U.S. Telecom, the D.C. Circuit that the FCC lacked authority to the Open Internet Order in 2017. “It is upheld the 2015 Open Internet Order, create the former net neutrality not surprising that the Supreme Court fi nding that the FCC’s authority to rules that reclassifi ed ISPs as a declined to hear this case dealing with regulate Internet Service Providers “telecommunication service” under the Wheeler FCC’s 2015 Order. Once the (ISPs) and establish net neutrality rules Title II of the Communications Act. current FCC repealed the 2015 Order, is well within the agency’s purview. On Petitioners also argued for the D.C. almost all parties . . . agreed that the May 1, 2017, the D.C. Circuit denied Circuit decision to be vacated — a step case was moot. Today’s decision is not petitions for en banc review, fi nding that that would have stripped the previous an indication of the Court’s views on such a review “would be particularly ruling of any force as a precedent in the merits but simply refl ects the fact unwarranted at this point in light of the current or future litigation. that there was nothing left for the Court uncertainty surrounding the fate of the Lawyers for the U.S. Department to rule on,” the Internet and Television FCC’s Order.” United States Telecom of Justice (DOJ) and the FCC fi led Association stated in a November 5 press Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. amicus briefs urging the Supreme release. 2017). Court to vacate the U.S. Telecom ruling. USTelecom President and CEO However, then D.C. Circuit Judge The DOJ and FCC argued that the Jonathan Spalter similarly wrote in a Kavanaugh, who fi lled the vacant seat on 2016 D.C. Circuit decision should not separate statement, “This decision is the U.S. Supreme Court left by Justice act as precedent for current or future not surprising because the D.C. Circuit’s Anthony Kennedy, wrote a dissenting litigation over the FCC’s repeal of the original decision was superseded by the opinion. He found that although the 2015 net neutrality rules, including lawsuits FCC’s Restoring Internet Freedom Order order “is one of the most consequential by 23 state attorneys general, multiple that correctly restored broadband as an regulations ever issued by any executive technology Internet companies, and information service. RIF remains the law or independent agency in the history of public interest organizations to preserve of the land and is essential to an open the United States[,] . . . [it] is unlawful net neutrality rules. Mozilla v. FCC, No. Internet that protects consumers and and must be vacated, however, for two 18 1051 (D.C. Cir. 2018). advances innovation.” alternative and independent reasons.” On Nov. 5, 2018, a divided Supreme Advocates of net neutrality took First, Kavanaugh asserted that Congress Court denied cert and refused to vacate solace in the Court’s decision not to “did not clearly authorize the FCC to the D.C. Circuit decision, leaving the vacate. In a November 8 blog post, legal issue the net neutrality rule” because 2016 ruling in place. However, according counsel for the Center of Democracy it “has never enacted net neutrality to the Supreme Court’s Order, Justices and Technology Stan Adams explained legislation or clearly authorized the FCC Clarence Thomas, Samuel Alito, and why the decision was a good outcome to impose common carrier obligations Neil Gorsuch were inclined to “grant for advocates. “First, the Court’s on Internet service providers.” Second, the petitions, vacate the judgment of denial eliminated one opportunity Kavanaugh argued that the 2015 order the United States Court of Appeals for for opponents to chip away at the violated the First Amendment. He the District of Columbia Circuit, and validity of the (former) rules or the found that the First Amendment “bars remand to that court with instructions Commission’s authority to create and the Government from restricting the to dismiss the cases as moot.” The enforce them,” Adams wrote. “Second, editorial discretion of Internet service full Order List is available online at: the Court’s decision not to vacate providers, absent a showing that an https://www.supremecourt.gov/orders/ Internet service provider possesses courtorders/110518zor_o759.pdf. Net Neutrality, continued on page 36 35 Net Neutrality, continued from page 35 federal government refuses to protect FCC Chairman Ajit Pai showed net neutrality, that California has a support for the DOJ’s lawsuit. “The the US Telecom decision means that responsibility to step in,” California Sen. Internet is free and open today, and it opinion remains the most on point legal Scott Wiener (D San Francisco), S.B. will continue to be under the light touch precedent in the other net neutrality 822’s principal author, told Gizmodo on protections of the FCC’s Restoring case, Mozilla v. FCC” (emphasis in September 30. Internet Freedom Order,” Pai said in a original). Barbara van Schewick, director Sept. 30 statement. “I look forward to Jessica Rosenworcel, a Democratic of Stanford Law School’s Center for working with my colleagues and the commissioner at the FCC, tweeted, “It Internet and Society, told Gizmodo, “SB Department of Justice to ensure the wasn’t enough for this FCC to roll back 822 sets a standard that other states can Internet remains ‘unfettered by Federal #NetNeutrality.. . . It actually petitioned and should follow.. . . SB822 includes the or State regulation,’ as federal law the Supreme Court to erase history important protections and clarifi cations requires, and the domain of engineers, and wipe out an earlier court decision in the full Order which explained the entrepreneurs, and technologists, not upholding open Internet policies. But rules and closed known loopholes.” lawyers and bureaucrats.” today the Supreme Court refused to do In a statement, Evan Greer, deputy In a separate statement, Sen. Wiener so.” director of Fight for the Future, a said, “While the Trump administration California Passes Comprehensive nonprofi t advocacy group, stated, “This does everything in its power to State Net Neutrality Law, Faces victory in California is a testament to undermine our democracy, we in Litigation from Department of the power of the free and open Internet California will continue to do what’s Justice, Internet Service Providers to defend itself.. . . And it’s a beacon of right for our residents.” On Sept. 30, 2018, California Gov. hope for Internet users everywhere who On Oct. 3, 2018, several media Jerry Brown signed into law SB 822, are fi ghting for the basic right to express outlets reported that four lobby groups, the “California Internet Consumer themselves and access information including USTelecom, The Wireless Protection and Net Neutrality Act of without cable and phone companies Association (CTIA), The Internet & 2018.” The law, previously approved by controlling what they can see and do Television Association (NCTA), and the the state Assembly and Senate, enacts online.” American Cable Association (ACA), net neutrality rules similar to those in However, on the same day the law representing the broadband industry the 2015 Open Internet Order, 80 Fed. was passed, the U.S. Department of also fi led a lawsuit in the Eastern District Reg. 19,738 (Apr. 13, 2015) (codifi ed at Justice (DOJ) fi led a lawsuit in the U.S. of California challenging California’s 47 C.F.R. 1), previously enforced by the District Court for the Eastern District new law. The complaint argued that FCC and later repealed in 2017, 80 Fed. of California to block the California it “presents a classic example of Reg. 19,738 (Apr. 13, 2015) (codifi ed at 47 law from going into effect on January 1, unconstitutional state regulation” C.F.R. 1). 2019, arguing California lacked suffi cient because the statute “was purposefully Specifi cally, the California law authority to regulate ISPs. The complaint intended to countermand and undermine prohibits internet service providers contended that SB 822 is “preempted by federal law by imposing . . . the very (ISPs) from “[b]locking lawful content, federal law and therefore violates the same regulations that the [FCC] applications, services, or nonharmful Supremacy Clause of the United States expressly repealed” and also violates devices, subject to reasonable network Constitution,” citing California’s own the Communications Act of 1934, 47 management.” The law also prohibits admission that it codifi ed portions of the U.S.C. § 151 et seq. The complaint the “[i]mpairing or degrading [of] rescinded 2015 order. The DOJ therefore further reasoned that the law “regulates Internet traffi c on the basis of Internet sought “a declaration invalidating and far outside the borders of the State content, application, or service, or preliminarily and permanently enjoining” of California and unduly burdens use of a nonharmful device,” meaning the California law. The full complaint is interstate commerce in violation of ISPs cannot impair or degrade “(1) available online at: https://www.justice. the dormant Commerce Clause of the particular content, applications, or gov/opa/press release/fi le/1097306/ United States Constitution. The full services; (2) particular classes of download. complaint is available online at: https:// content, applications, or services; (3) In a September 30 press release, then www.ustelecom.org/sites/default/fi les/ lawful Internet traffi c to particular Attorney General Jeff Sessions provided documents/2018_10 03%20Complaint. nonharmful devices; or (4) lawful additional reasoning for the lawsuit, pdf. Internet traffi c to particular classes of “Under the Constitution, states do not On October 26, California Attorney nonharmful devices.” Additionally, the regulate interstate commerce — the General Xavier Becerra agreed to a law prohibits “paid prioritization,” which federal government does,” he said. deal with the DOJ postponing litigation the law defi nes as the “management of “Once again the California legislature over the California Internet Consumer an Internet service provider’s network has enacted an extreme and illegal Protection and Net Neutrality Act to directly or indirectly favor some state law attempting to frustrate federal pending a separate case before the U.S. traffi c over other traffi c.” The full law policy. The Justice Department should Court of Appeals for the D.C. Circuit is available online at: https://leginfo. not have to spend valuable time and involving challenges to the FCC’s repeal. legislature.ca.gov/faces/billTextClient. resources to fi le this suit today, but we Mozilla v. FCC, No. 18 1051 (D.C. Cir. xhtml?bill_id=201720180SB822. have a duty to defend the prerogatives 2018). As the Bulletin went to press, the Several observers praised the passage of the federal government and protect D.C. Circuit had not ruled in the case. of the law. “I’m very grateful to the our Constitutional order. We will do so As part of the deal to postpone governor for really taking a hard look with vigor. We are confi dent that we will litigation, California offi cials agreed not at this and understanding that if the prevail in this case — because the facts to enforce the new net neutrality rules are on our side.” 36 that were to take effect on Jan. 1, 2019. determined that 57% of the comments IP addresses, time stamps, and the FCC’s Chairman Pai praised the deal in an were submitted using either duplicate internal web server logs linked to public October 26 statement. “I am pleased that or temporary email accounts, and that comments submitted to the agency. California has agreed not to enforce its 94% of the comments were submitted However, the requests were onerous Internet regulations,” Pai said. multiple times, suggesting that many still opposed by the FCC. “We are “This substantial concession refl ects the of the comments received by the FCC disappointed that The New York Times strength of the case made by the United were submitted by “bots.” The study has fi led suit to collect the Commission’s States earlier this month.” also found that some of the automated internal Web server logs, logs whose However, net neutrality advocates messages originated from Russia. disclosure would put at jeopardy the said they were confi dent that the court In an August 14 letter to Pai, Commission’s IT security practices for battles would ultimately conclude in several members of the U.S. House of its Electronic Comment Filing System,” their favor. “Net neutrality ensures open Representatives Committee on Energy an FCC spokesperson told Ars Technica access to the Internet and guarantees and Commerce expressed concern on Sept. 21, 2018. that each of us can decide for ourselves that the FCC “allowed the public myth On September 20, several media where to go on the Internet, as opposed created by the FCC to persist and outlets reported that the Times had to Internet service providers making your misrepresentations to remain formally fi led a lawsuit and accused that decision for us,” Sen. Wiener told uncorrected for over a year,” and asked the FCC of withholding evidence of The Washington Post. “I look forward to the FCC to respond to a written set potential Russian meddling in the public successful litigation on this issue and to of questions about the incident.” The comments. In its complaint, the Times the restoration of strong net neutrality full letter is available online at: https:// explained that the “request at issue protections in our state.” democrats energycommerce.house.gov/ in this litigation involves records that sites/democrats.energycommerce.house. will shed light on the extent to which New York Times sues FCC for gov/fi les/documents/FCC%20ltr%20 Russian nationals and agents of the Records Regarding Net Neutrality 8.14.18.pdf. Russian government have interfered Repeal Meanwhile, on Nov. 21, 2017, with the agency notice and comment On Sept. 20, 2018, The New York then New York Attorney General Eric process about a topic of extensive public Times fi led a complaint in the U.S. Schneiderman announced an ongoing interest: the government’s decision to District Court for the Southern District investigation into millions of fraudulent abandon ‘net neutrality.’” The complaint of New York requesting a judicial order comments submitted during the public alleged that “[d]espite the clear public to compel the Federal Communication comment period. According to the importance of the requested records,” Commission (FCC) to release records statement, the New York Attorney and despite the Times ’ multiple attempts regarding the public comment period General’s offi ce found that “tens of to narrow their requests, “the FCC associated with the 2017 repeal of net thousands of New Yorkers” had their has thrown up a series of roadblocks, neutrality rules. New York Times Co. v. identities attached to comments the preventing The Times from obtaining the FCC, No. 1:18 cv 08607 (S.D.N.Y. 2018). individuals did not, in fact, submit. documents.” The Times alleged that the FOIA request On Oct. 16, 2018, current New York The lawsuit asked the court to was aimed to determine the extent to Attorney General Barbara D. Underwood “[d]eclare that the documents sought which Russian hackers had infl uenced expanded the investigation. According by [the] FOIA request . . . are public the public comment period. to The New York Times, on Oct. 16, 2018, under 5 U.S.C. § 552 and must be The FCC’s public comment system Underwood subpoenaed more than a disclosed” and require that the FCC was fl ooded with over 22 million dozen telecommunications trade groups, provide them to the Times within 20 comments in May 2017 regarding lobbying contractors, and Washington days of the court order. The complaint the agency’s plans to roll back net advocacy organizations, seeking to was signed by David E. McCraw, deputy neutrality rules, eventually leading the determine whether the groups submitted general counsel of The New York Times. public comment system to crash on millions of fraudulent public comments. (McCraw was the 32nd Silha Lecturer. May 7 and 8. FCC Chairman Ajit Pai In June 2017, the Times made its fi rst For more information on his lecture initially blamed the incident on several Freedom of Information Act (FOIA), titled “Making Media Law Great Again: distributed denial of service (DDoS) 5 U.S.C. § 552, request for the FCC’s The First Amendment in the Time of cyberattacks. However, according to an server logs to investigate possible Trump,” see “32nd Annual Silha Lecture internal report by FCC Inspector General Russian involvement with the public Addresses Freedom of the Press During David Hunt, which was released on Aug. comment process. According to court Trump Presidency” in the Fall 2017 issue 6, 2018, the crash was due to “apparent records, on July 21, 2017, the FCC denied of the Silha Bulletin.) shortcomings in the system.” The report the request, asserting that releasing such As the Bulletin went to press, the concluded the reason for the crash information would compromise its IT Southern District of New York had not stemmed from poor site design, lack of systems and security. The FCC also cited ruled in the case. readiness to handle massive traffi c, and a Exemption 6 of FOIA, which restricts surge in visits that took the site down. the disclosure of “personably identifi able SARAH W ILEY Additionally, a Nov. 29, 2017 study information.” The Times later narrowed SILHA R ESEARCH A SSISTANT by the Pew Research Foundation the scope of its requests, but still sought
37 Investigations, Prosecutions, and Sentencing Continue In Government Leak Cases n fall 2018, investigations and Albury, a former Minneapolis Federal the court “can and should consider the prosecutions related to leaks of Bureau of Investigation (FBI) agent important First Amendment interests at secret government information and who pleaded guilty to two counts of stake,” as well as “craft a punishment documents continued in different violating the Espionage Act, 18 U.S.C. § that properly weighs the constitutional stages around the United States. 793 et seq., was sentenced to four years protection of free speech and the public IOn October 18, Terry James Albury, a in prison by U.S. District Court for the interest in the newsworthy disclosure former Minneapolis Federal Bureau District of Minnesota Judge Wilhelmina at issue in this case against any actual of Investigation (FBI) agent charged M. Wright. The sentencing marked the harm to national security caused by Mr. with two counts conclusion of the Trump administration’s Albury’s act of conscience.” LEAK of violating the second prosecution of an alleged leaker The brief cited several factors that Espionage Act, 18 of government documents under the underscored the important interests INVESTIGATIONS U.S.C. § 793 et seq., Espionage Act. necessary for the court to make this was sentenced to In March 2018, Albury, who began determination. First, the professors four years in prison by a federal judge in working for the FBI in 2000, was charged argued that “the status of information Minnesota. The sentencing marked the with one count of “knowingly and as ‘classifi ed’ does not, standing alone, conclusion of the second prosecution by willfully” disclosing information related establish the existence of harm from its President Donald Trump’s administration to national security and one additional publication or the gravity of the offense of an individual who leaked classifi ed count of retaining national defense in its unauthorized disclosure.” Instead, government documents to the press. information. In an August 2017 affi davit classifi ed information may be “essential On October 17, another such case arose in support of an application for a search to reporting about law enforcement when senior U.S. Treasury Department warrant, FBI Special Agent Matthew and other everyday matters the public employee Natalie Mayfl ower Sours Pietropola identifi ed “approximately 27 legitimately needs to know,” meaning Edwards was charged by federal FBI and U.S. Government documents journalists have often been required prosecutors with two counts of violating published online” by The Intercept, 16 to rely on leaks in order to gain access federal law prohibiting the disclosure of of which were marked “classifi ed.” The to this information, especially given highly confi dential documents known FBI concluded that the documents had “overclassifi cation” of materials as as “suspicious activity reports” (SARs). been leaked by “someone with direct “classifi ed” by the federal government. 31 U.S.C. § 5322; 18 U.S.C. §§ 371 372. access to them,” which included Albury, Second, the brief suggested that Edwards allegedly leaked the information who had electronically accessed over the court consider “the nature and to BuzzFeed News, which published at two thirds of the documents through intent” of the Espionage Act, which least 12 articles based on the documents. FBI information systems. On April was “never used to prosecute a leak On October 15, James A. Wolfe, the 17, 2018, Albury pleaded guilty to the to the media until more than 50 years former U.S. Senate Select Committee on two counts under the Espionage Act. later.” According to the brief, the Act Intelligence (SSCI) director of security, (For more information on the charges “has been transformed over the last agreed to plead guilty to one count of against Albury and his background decade” into an “Offi cial Secrets Act,” making a false statement to the FBI. As at the FBI, see DOJ Charges Former namely by President Barack Obama’s part of the plea agreement, prosecutors Minneapolis FBI Agent under Espionage administration, which prosecuted eight dropped two additional charges for lying Act; Second Such Action by the Trump people in eight years for allegedly leaking to the FBI, as well as requesting a lesser Administration in “Federal Government classifi ed information to journalists or for prison sentence. Targets a Leaker and Backpage.com” in retaining such information. (For more on Meanwhile, on August 1, the city of the Winter/Spring 2018 issue of the Silha the Obama administration’s prosecution Minneapolis announced that it had hired Bulletin.) of individuals under the Espionage an outside fi rm to investigate the leak of On Oct. 4, 2018, seventeen Act, see “President Barack Obama a private draft report to the Minneapolis constitutional, First Amendment, and Leaves Mixed Legacy on Government Star Tribune, prompting criticism from media law professors, including Silha Transparency” in the Fall 2016 issue of media and transparency advocates. The Center Director and Silha Professor the Silha Bulletin, “Attorney General report was the subject of a June 15, 2018 of Media Ethics and Law Jane Kirtley, Holder Leaves Problematic Legacy on Star Tribune story regarding police fi led an amici curiae brief in support of Press Rights and Civil Liberties” in the urging paramedics to sedate people Albury and “the continued operation of a Fall 2014 issue, “Manning, Kiriakou Face with ketamine, a strong tranquilizer. free, fair, and robust press in the United Punishment for Blowing the Whistle on On November 8, the fi rm reported in a States.” the War on Terror” in the Winter/Spring summary of its fi ndings that it had not The brief stated that the sentencing 2013 issue, “Leaks: New Policies Emerge; identifi ed the source of the leak. of Albury “require[d the District Court of Congress Gets Involved” in the Summer Minnesota] to determine what criminal 2012 issue, “The Obama Administration Former Minneapolis FBI Agent punishment should appropriately be Takes on Government Leakers; Sentenced to Four Years in Prison for imposed on a government employee who Transparency May be a Casualty” in the Violating the Espionage Act disclosed to a journalist information of Winter/Spring 2012 issue, “Judge Rebukes On Oct. 18, 2018, multiple media signifi cant public interest to his fellow Government on Leak Prosecutions” in the outlets reported that Terry James citizens.” The professors contended that Summer 2011 issue, “Open Government 38 Advocates Criticize Obama’s Prosecution understanding of honor. It put our Kirtley said. “It’s because it creates of Leakers” in the Winter/Spring 2011 country at risk.” Wright acknowledged frankly a fear, a chilling effect, as we issue, and “The Media and the Military: Albury’s concerns about racism, but would say.” She added, “Any kind of Guantanamo Access Rules Loosened; called his actions “a fool’s errand.” espionage prosecution has an impact on Other Guidelines Set to Limit Leaks” in According to Reuters on October 18, transparency.” the Fall 2010 issue.) Albury’s attorneys had sought a much The sentencing of Albury marked the Third, the brief stated that the court shorter sentence or just probation, citing end of the Trump administration’s second should “consider the fundamental First that Albury has two children, among prosecution of an individual who leaked Amendment interests that are at stake other arguments. Conversely, prosecutors government documents to the news in penalizing a leak of newsworthy sought a 52 month prison term. media. On Aug. 23, 2018, former National information.” The professors argued that In a statement on the same day, Security Agency (NSA) contractor Reality new communication technologies “leave then Attorney General Jeff Sessions, Winner was sentenced to 63 months in digital breadcrumbs that investigators who previously vowed in 2017 to crack prison and three years of probation, as can easily spot and follow to their source down on unauthorized disclosures of well as 100 hours of community service without ever consulting the reporter who classifi ed government information, upon her release. Winner had been receives the leak,” which therefore makes charged with one “the First Amendment protection for “When you punish someone like count of “willful confi dential sources largely irrelevant.” retention and Finally, the brief argued that the court [Albury], what that’s going to do is deter transmission of should consider the “public value” of people not only from leaking classifi ed national defense Albury’s leak in determining the proper information, but from giving any kind of information” under penalty. The brief cited New York Times the Espionage v. Sullivan in which the U.S. Supreme information to the press if there is any Act after she Court found that the central purpose kind of doubt about whether it would was arrested on of the First Amendment is to protect damage national security.” accusations of the “the principle that debate on public “removing classifi ed issues should be uninhibited, robust, — Jane Kirtley, material from a and wide open.” 376 U.S. 254, 270 (1964). Silha Center Director and government facility The brief explained that Albury was Silha Professor of Media Ethics and Law and mailing it to a government employee who “sought a news outlet,” to inform citizens about secret and which turned out troubling law enforcement practices that to be The Intercept. many agree are unlawful or unwise.” The said, “Today’s sentence should be a The document was a classifi ed report resulting leak led to an “important public warning to every would be leaker in the detailing two cyberattacks by Russia’s debate about specifi c FBI practices as federal government that if they disclose Main Intelligence Agency (GRU) on a well as the broader question of whether classifi ed information, they will pay U.S. voting software supplier during the the FBI should be able to keep the rules a high price.” He added that the U.S. 2016 presidential election. (For more governing its domestic investigations Department of Justice (DOJ) would information on the Winner case, see secret and therefore largely immune from continue “conducting perhaps the most Former NSA Contractor Pleads Guilty to democratic scrutiny.” The full amici brief aggressive campaign against leaks” in Violating the Espionage Act in “Trump is available online at: https://fas.org/sgp/ its history. (For more information on Administration Targets Journalist, Leaker jud/albury amicus.pdf. Sessions’ comments in 2017, see Federal of Government Information, and Former On October 18, prior to Judge Wright Prosecutors Seize Phone and Email Government Employees Who Took announcing the sentence, Albury Records of New York Times Reporter Classifi ed Documents” in the Summer apologized to his former FBI colleagues, in Leak Investigation in “Trump 2018 issue of the Silha Bulletin and according to The New York Times on the Administration Targets Journalist, Department of Justice Arrest of NSA same day. He also said that he regretted Leaker of Government Information, Leaker Marks First Such Prosecution voicing his concerns through the news and Former Government Employees under Trump Administration in media and should have instead gone Who Took Classifi ed Documents” in the “Reporters and Leakers of Classifi ed through offi cial channels. He added, “I Summer 2018 issue of the Silha Bulletin Documents Targeted by President Trump truly wanted to make a difference and and “Reporters and Leakers of Classifi ed and the DOJ” in the Summer 2017 issue.) never intended to put anyone in danger.” Documents Targeted by President Trump Albury had previously argued that he and the DOJ” in the Summer 2017 issue.) Senior Treasury Department was troubled by how racism within In an October 18 interview with Employee Charged with Leaking the FBI affected its interactions with KSTP TV, the Twin Cities’ ABC affi liate, Confi dential Documents to BuzzFeed minority communities, as reported by the Kirtley explained the danger of such News Associated Press (AP) on April 17, 2018. prosecutions. “When you punish On Oct. 17, 2018, the U.S. Attorney’s Wright then announced Albury’s someone like this, what that’s going to Offi ce for the Southern District of New sentence, which included four years do is deter people not only from leaking York announced in a press release that in prison, as well as three years classifi ed information, but from giving the U.S. Department of Justice (DOJ) of supervised release. She said, any kind of information to the press if and the Federal Bureau of Investigation “You perceived your actions to be there is any kind of doubt about whether honorable.. . . But it is a misguided it would damage national security,” Leaks, continued on page 40 39 Leaks, continued from page 39 Edwards had disclosed the SARs without In the October 17 press release, U.S. authorization, including because she Attorney Geoffrey S. Berman was quoted (FBI) had fi led a criminal complaint “had access to all of the SARs implicated as saying, “We hope today’s charges against Natalie Mayfl ower Sours in the [disclosures]” through “certain remind those in positions of trust within Edwards, a senior advisor at the U.S. electronic folders” and that she had government agencies that the unlawful Treasury Department’s Financial Crimes begun communicating with Leopold in sharing of sensitive documents will not Enforcement Network (FinCEN). The July 2017, with ensuing conversations be tolerated and will be met with swift charges marked the latest effort by the falling near the dates the 12 articles were justice by this Offi ce.” Trump administration to crack down on published. FBI Assistant Director in Charge leaks of secret government information. The complaint further alleged that on William F. Sweeney Jr. said, “In her The purpose of FinCEN is to October 16, in an interview with federal position, Edwards was entrusted with “safeguard the fi nancial system from law enforcement in Virginia, Edwards sensitive government information. As illicit use and combat money laundering “initially concealed her relationship we allege here today, Edwards violated and promote national security with [the reporter] and denied having that trust when she made several through the collection, analysis, and any contacts with the news media.” unauthorized disclosures to the media. dissemination of fi nancial intelligence However, during questioning the Today’s action demonstrates that those and strategic use of fi nancial authorities.” following day, Edwards “confessed that who fail to protect the integrity of According to the October 17 press she had provided SARs to a BuzzFeed government information will be rightfully release, “suspicious activity reports” News reporter” and had met with held accountable for their behavior.” (SARs) are “fi led confi dentially by Leopold at least two times, though she The full press release is available online banks and other fi nancial institutions still “falsely denied knowing that [the at: https://www.justice.gov/usao sdny/ to alert law enforcement to potentially reporter] intended to or did publish that pr/senior fi ncen employee arrested and illegal transactions” and are “not public information,” according to the complaint, charged unlawfully disclosing sars. documents.” which cited her internet usage as The complaint, which was fi led in evidence that she was actually aware that Former U.S. Senate Staffer Pleads the U.S. District Court for the Southern the information had been published. Guilty to Lying to the FBI, Avoids District of New York on October 17, Additionally, the complaint noted that Charges Under Espionage Act alleged that on Aug. 2, 2018, Edwards had at the time she was questioned, Edwards On Oct. 15, 2018, The New York exchanged approximately 541 messages was also in possession of a fl ash drive Times reported that former U.S. Senate with a reporter via an encrypted that “appeared to be the same drive on Select Committee on Intelligence (SSCI) application, as well as several fi les which she saved the SARs related to the director of security James A. Wolfe containing SARs. The reporter and news [disclosures], among other fi les.” agreed to plead guilty to one count of outlet were not named in the complaint, The Washington Post noted on making a false statement to the Federal but were later identifi ed by several news October 17 that the complaint also Bureau of Investigation (FBI). In return, outlets, including The New York Times, indicated that the FBI had investigated federal prosecutors agreed to drop two as Jason Leopold of BuzzFeed News. one of Edwards’ bosses, an associate additional charges for making false The substance of the SARs included director of FinCEN, who was not named statements, as well as request a lesser information pertaining to President in the document. However, people prison sentence. Wolfe’s lawyers pointed Donald Trump’s former campaign familiar with the case identifi ed the out that their client had not been charged chairman Paul Manafort; Trump person as Kip Brailey, according to the for leaking classifi ed government secrets campaign offi cial Richard Gates; the Post. under the Espionage Act, 18 U.S.C. § 793 Russian Embassy; accused Russian agent Count One of the complaint alleged et seq., though he was questioned as part Maria Butina; and suspected Russian “unauthorized disclosures of [SARs]” of a leak investigation. money launderer Prevezon Alexander, in violation of 31 U.S.C. § 5322 and 18 In June 2018, Wolfe was arrested among other individuals and topics. U.S.C. §§ 371 372. Count Two alleged on three counts of lying to federal The information was published in “Conspiracy to Make Unauthorized authorities as part of an FBI investigation approximately 12 articles by BuzzFeed Disclosures of [SARs].” Both counts into “multiple unauthorized disclosures News between October 2017 and carry a maximum sentence of fi ve years of information to one or more members March 2018. The complaint provided in prison. The full complaint is available of the news media.” The investigation details of each article, including one in online at: https://www.justice.gov/usao began after multiple news outlets October 2017 claiming that BuzzFeed sdny/press release/fi le/1101511/download. reported Carter Page, President Trump’s News “‘learned specifi c details about On October 17, CNBC and The former campaign aide, had had contacts 13 [] wire transfers’ related to Paul Washington Post reported that Edwards, with Russian intelligence operatives, Manafort.” The latest article, titled a Quinton, Va. resident, was released information that was previously only “Here’s How A Major Western Bank on a $100,000 personal recognizance available in classifi ed documents Enabled A Suspected Russian Money bond after her presentment in the U.S. provided by law enforcement offi cials to Launderer” which was published on District Court for the Eastern District the SSCI. Oct. 15, 2018, is available online at: of Virginia. The DOJ and FBI complaint In December 2017, FBI agents https://www.buzzfeednews.com/article/ was fi led in New York because BuzzFeed conducted a “voluntary, noncustodial azeenghorayshi/prevezon mueller News is based in New York City. As the interview” with Wolfe regarding his investigation td bank. Bulletin went to press, Edwards had not communication with four reporters, The complaint argued that there announced how she would plead in the including New York Times reporter was probable cause to believe that case. Ali Watkins, with whom he had been 40 in a relationship. Wolfe initially denied numerous distortions on social and restrained . . . and the ketamine caused knowing the Watkins’ sources until the other media of the facts of this matter,” heart or breathing failure, requiring them FBI agents showed him a picture of they said. “So we emphasize again today to be medically revived.” himself and Watkins together. Wolfe then that Jim was never charged with having Mannix cited a draft “city report,” admitted that he had lied to the agents compromised classifi ed information, which was the result of an investigation and that he had been in a relationship nor is such a charge part of today’s plea. conducted by the Offi ce of Police with her since 2014, though he Jim has accepted responsibility for his Conduct Review, a division of the maintained that he had never disclosed actions and has chosen to resolve this Minneapolis’ Department of Civil Rights. classifi ed documents or information. matter now so that he and his family can Mannix stated that the Star Tribune According to an indictment unsealed move forward with their lives.” “ha[d] obtained a copy [of the report],” on June 7, 2018, Watkins, who worked which had been “circulated narrowly for BuzzFeed at the time, had published within City Hall but information in April 2017 related to “Leak investigations like this are not disseminated Page after communicating with Wolfe, to the public.” The including through “82 text messages” and usually prompted by embarrassment fi nal version of the a March 17, 2017 “28 minute phone call.” over the underlying matter that was 115 page report Watkin’s article is available online at: leaked.. . . [The investigation] chills was released on https://www.buzzfeed.com/alimwatkins/a July 26, according former trump adviser met with a russian whistleblowers from making disclosures to KSTP TV, the spy?utm_term=.ba1vyP6Vn#.widBzGmPq. that are matters of public interest.” ABC affi liate in St. The New York Times reported on June Paul, on the same 7 that federal prosecutors learned this — Jane Kirtley, day. information after the U.S. Department of Silha Center Director and On August 1, Justice (DOJ) seized Watkins’ phone and Silha Professor of Media Ethics and Law the Star Tribune email records during the investigation, reported that prompting criticism from media experts Minneapolis had and advocates. (For more information on Minneapolis Launches Investigation hired St. Paul based fi rm NeuVest to the case against Wolfe and the seizure of into Leak of Draft Report to the determine who leaked the report to the Watkins’ records, see “First Amendment Star Tribune; Investigation Fails to newspaper. Reporter Mukhtar M. Ibrahim Coalition Sues Department of Justice Uncover Source of Leak wrote that the fi rm would “interview Over Secret Collection of Journalist’s On Aug. 1, 2018, the Minneapolis city employees to determine the extent Telephone and Email Records” on page Star Tribune reported that the city of of the breach, which will touch on all 28 of this issue of the Silha Bulletin Minneapolis had hired an outside fi rm the staff members who had access to and Federal Prosecutors Seize Phone to investigate the leak of a private draft the draft report.” KSTP reported that and Email Records of New York report to the newspaper. The report the contract between Minneapolis and Times Reporter in Leak Investigation was the subject of a June 15, 2018 Star NeuVest showed that the fi rm agreed to in “Trump Administration Targets Tribune story regarding instances of “gather information to allow the city of Journalist, Leaker of Government police urging paramedics to sedate Minneapolis to determine whether or Information, and Former Government people with a strong tranquilizer. Media not a complaint that was made under Employees Who Took Classifi ed and transparency advocates criticized the City’s Ethics Policy is supported Documents” in the Summer 2018 issue.) the investigation, arguing that the draft by the facts,” as well as conduct other On Oct. 15, 2018, Wolfe agreed to report was a “matter of public concern.” workplace investigations as agreed upon plead guilty to one count of making a City offi cials defended the investigation, by the city, and also to provide written false statement to the FBI. Prosecutors with some arguing that it was required fi ndings. agreed to drop the remaining two under Minnesota law. On November According to KSTP, Minneapolis counts as part of the plea agreement, 8, the Star Tribune reported that the agreed to pay NeuVest $275 an hour as well as to recommend a “low offense investigation had not found the “exact to conduct the “neutral workplace level” under which federal sentencing source of [the] breach.” investigation,” with a maximum guidelines would call for zero to six The Star Tribune’s June 15 story, compensation of $100,000. City Clerk months in prison, according to The New written by reporter Andy Mannix, Casey Carl told the Star Tribune that the York Times on the same day. detailed how Minneapolis police offi cers leak investigation was the largest the city A sentencing hearing before U.S. had “repeatedly requested over the had launched since he was hired in 2010. District Court for the District of past three years that Hennepin County According to the Star Tribune, Columbia Judge Ketanji Brown Jackson medical responders sedate people using Minneapolis Mayor Jacob Frey launched was set for Dec. 20, 2018. As the Bulletin the powerful tranquilizer ketamine, at a separate review into “the interaction went to press, the hearing had not been times over the protests of those being between Minneapolis cops and medical held. drugged, and in some cases when personnel,” selecting acting U.S. Attorney In a joint statement, Wolfe’s lawyers, no apparent crime was committed.” General Sally Yates to investigate Preston Burton, Benjamin B. Klubes, The story further alleged that “[o]n whether Minneapolis police offi cers and Lauren R. Randell, reiterated that multiple occasions, in the presence of improperly infl uenced paramedics’ their client had not been charged under police, Hennepin Healthcare EMS decisions to use ketamine. Frey stated the Espionage Act for leaking classifi ed workers injected suspects of crimes government information. “We have seen and others who already appeared to be Leaks, continued on page 42 41 Leaks, continued from page 41 come across evidence of government the scope of the breach and restore malfeasance should not fear retaliation the reasonable security of the data,” that the city’s review was separate for exposing that wrongdoing.” Nelson including “an investigation into any from the leak investigation, to which he added, “And when it was publicized it breach in the security of data.” The report claimed he was not involved. resulted in almost immediate permanent from the investigation must include “(1) a Several observers raised concerns change in policy by MPD, to address the description of the type of data that were about the investigation. Silha Center issue.” accessed or acquired; (2) the number of Director and Silha Professor of Media Spear argued that the investigation individuals whose data was improperly Ethics and Law Jane Kirtley argued in could hurt relationships between accessed or acquired; (3) if there has an August 1 interview with the Star reporters and their confi dential sources. been fi nal disposition of disciplinary Tribune that the draft report was a “Whistleblowers may be the only way action[; and] (4) the fi nal disposition of “matter of legitimate public concern that public fi nds out about reports and any disciplinary action taken against each [that] . . . outweighs whatever harm it activities the government would rather employee in response.” is that the city is trying to claim.” She keep secret,” he said. “This issue is about On August 9, KARE TV, Minneapolis’ added, “Leak investigations like this are three things: the public’s right to know, NBC affi liate, noted that the fi nal report usually prompted by embarrassment the right of journalists to seek truth and “was devoid of such private information,” over the underlying matter that was report it, and government transparency.” though it was unknown whether any leaked.. . . [The investigation] chills In an August 8 tweet, the Minnesota additional information leaked to the Star whistleblowers from making disclosures SPJ reported that several Twin Cities Tribune was private data. Kirtley added that are matters of public interest.” journalists, transparency advocates, in her remarks at the August 9 press On Aug. 9, 2018, the Committee to media experts, and others had signed two conference that Minneapolis should have Defend the First Amendment, a new, petitions asking Minneapolis to “stop the already known if there had been a breach broad coalition of journalists, media source hunt.” The tweet added, “This isn’t of private data because they created the and transparency advocates, attorneys, Salem — let the free press do its job!” report. and others, held a news conference According to the Star Tribune on August Carl added that there would be no urging “Minneapolis Mayor Jacob 9, nearly 300 journalists and individuals “effort to obtain any information related Frey, the Minneapolis City Council had signed the petitions, which were to the breach from the Star Tribune,” and the Minneapolis City Clerk to end delivered to the city of Minneapolis citing Minnesota’s Shield Law, the Free immediately the investigation into the during the press conference. Flow of Information Act, which provides leak of the draft report on Ketamine to However, some city offi cials a “privilege not to reveal sources of the Star Tribune,” according to an August defended the investigation. In an information or to disclose unpublished 8 press release. Speakers at the news August 1 interview with the Star Tribune, information.” Minn. Stat. § 595.021 et seq. conference included Kirtley, as well as assistant city clerk and director of On Nov. 8, 2018, the Star Tribune the legal director of the American Civil records and information management reported that NeuVest had published a Liberties Union (ACLU) of Minnesota, Christian Rummelhoff, who oversaw the summary of its fi ndings, which indicated Teresa Nelson, and Joseph Spear, investigation, said, “It’s important for us that the investigation had not determined president of the Minnesota Society of to do this investigation, which is required the “exact source of the breach.” Professional Journalists (SPJ). by the law, and for us to educate people However, the investigation, which cost Kirtley reiterated her comments to on how to effectively conduct oversight Minneapolis $22,000, did lead the city to the Star Tribune, contending that the of the government.” notify two individuals that their private investigation would have negative effects In an August 6 opinion piece for the data may have been breached, according on public oversight of government and Star Tribune, Minneapolis city clerk to the Star Tribune. law enforcement. “It’s really all about Casey J. Carl argued that the city is In a November 8 interview with the the eternal question of whether the required by the Minnesota Government newspaper, Rummelhoff said, “We did government can keep its secrets,” she Data Practices Act (MGDPA), Minn. Stat. not determine who provided the data to said. “And I think the answer is it can if § 13.055, to investigate any leaks, like the [Star Tribune].” At a City Council it can, but once the information is out, that of the draft report, to determine Enterprise Committee meeting on conducting an investigation like this whether private or confi dential data November 8, Carl said, “This investigation serves only to chill public oversight and had been breached. Section 13.055 of was never about who may have created information.” the MGDPA states that a “government a breach. Rather, our focus has been on Nelson agreed with Kirtley that the entity that collects, creates, receives, systems and processes.. . . How data was investigation would likely chill freedom maintains, or disseminates private or created or collected? Who had access and of speech. “The city of Minneapolis’ confi dential data on individuals must for what business purpose? How the data intensive investigation into the leak of disclose any breach of the security of the was shared during the drafting stage?” information to a journalist is completely data following discovery or notifi cation unnecessary and chills freedom of of the breach.” The entity may take SCOTT M EMMEL speech,” she said. “Individuals who “any measures necessary to determine SILHA BULLETIN E DITOR
42 Trump Administration Threatens Regulation of Social Media Companies and Google for Alleged Political Bias n Aug. 28, 2018, President The accusation of tech companies more information on the removal of Donald Trump posted a suppressing conservative voices is Jones’ content, see “Defamation Cases pair of tweets alleging that frequently raised by Republicans and Continue for Right Wing Radio Host and Google search results were conservative leaning media outlets. In BuzzFeed; Former Political Candidates biased against right wing April 2018, pro Trump vloggers Lynette Bring Defamation Lawsuits” on page Omedia outlets and individuals, prompting Hardaway and Rochelle Richardson, 52 of this issue of the Silha Bulletin criticism from some observers. On who use the names Diamond and Silk and Massachusetts Man, Sandy Hook September 5, Google faced renewed respectively, charged Facebook with Parents Sue Alex Jones for Defamation criticism after censorship when the company deemed in “Minnesota and Federal Courts TECH Google executives Facebook’s content as “unsafe” and Grapple with Defamation Questions; did not attend temporarily suspended their Facebook CENSORSHIP Right Wing Radio Host Faces Several a U.S. Senate page in April. Facebook founder and Defamation Lawsuits” in the Summer Intelligence CEO Mark Zuckerberg later admitted 2018 issue.) Committee hearing, prompting that the suspension was due to a mistake Observers pointed out that President Google CEO Sundar Pichai to in their content moderation system. Trump’s August 28 tweets seemed agree to testify before the U.S. Similarly, in fall 2018, several websites, to mirror an August 25 claim by House of Representatives. The including Facebook and Twitter, conservative news site, “PJ Media,” September 5 hearing also prompted removed the content of right wing radio which found that “96 Percent of Google the U.S. Department of Justice (DOJ) host Alex Jones and his conspiracy Search Results for ‘Trump’ News Are to release a statement indicating that theory website, “InfoWars,” leading to from Liberal Media Outlets.” The article it would consider regulating tech additional claims that tech companies was based on editor Paula Bolyard’s companies and social media to prevent stifl e conservative voices. However, the personal experiences with using Google political bias. Observers argued that companies countered that Jones was to search for “Trump.” Bolyard’s results government attempts to regulate tech removed for violating rules against “hate included articles from CNN, CBS, companies and social media sites would speech” and “bullying,” among other CNBC, The Atlantic, Politico, Reuters, likely violate the First Amendment. reasons. USA Today, The New Yorker, and The In a pair of tweets on Aug. 28, Several scholars noted that the Washington Post , prompting Bolyard 2018, President Trump alleged removal of Jones’ content was not to argue that it was unfair most articles anticonservative bias in Google search a violation of his First Amendment came from what she considered liberal results, declaring the company’s rights. In an August 9 interview with media outlets. results were “RIGGED” and asserting USA Today, executive director of However, in a study published in a that Google suppresses “voices of the First Amendment Center at the July issue of the journal Computers in conservatives.” The President also Freedom Forum Institute Lata Nott Human Behavior, researchers Seth questioned whether such results were said, “As private companies, Apple, Lewis and Efrat Nechushtai found that “illegal” and claimed that “the serious Facebook and Spotify can decide what Google News recommendations were in situation will be addressed!” Later in the content appears on their platforms, so fact largely homogeneous, with liberals day, President Trump’s top economic I wouldn’t call (the tech sites’ actions) and conservatives being shown the same adviser, Larry Kudlow, told reporters a violation of speech.” In an August 11 links regardless of ideology. “Yes, Google that the White House would be “taking story for the Huffi ngton Post, reporter News is dominated by mainstream a look” at whether, and how, Google Paul Blumenthal contended that “First news,” Lewis, a University of Oregon should be regulated. Amendment judicial doctrine hardly media professor, told Wired on August In response, Google rejected the has anything to say about the policing 28 . “If you consider mainstream news to allegation and argued that its searches of speech on private digital platforms be left leaning, you will have concerns are not politically biased. Google wrote by the companies that own them.” He about the results you get from Google in a September 28 statement, “When continued, “In the 20th century, courts News. There’s no question about that.” users type queries into the Google defi ned the right to freedom of speech Google also faced criticism after the Search bar, our goal is to make sure they as a protection against censorship by the company refused lawmakers’ requests receive the most relevant answers in a government. Private actors like Google to send Pichai or Google co founder and matter of seconds. Search is not used and Facebook are not governments Alphabet, Inc. CEO Larry Page to testify to set a political agenda and we don’t (even if they act like them). They are before the U.S. Senate Intelligence bias our results toward any political private companies that are allowed to Committee regarding Russian use of ideology. Every year, we issue hundreds moderate content on their platforms as social media to spread misinformation. of improvements to our algorithms to they please and remove users that are Although Twitter CEO Jack Dorsey and ensure they surface high quality content disruptive or screwing up the experience Facebook Chief Operating Offi cer Sheryl in response to users’ queries.” Google for everyone else.” He added, “That’s Sandberg both attended the Senate added, “We continually work to improve why others have tried to argue that Intelligence Committee hearing on Google Search and we never rank online social media platforms are more Sept. 5, 2018, Google’s executives were search results to manipulate political like the modern day public square, sentiment.” rather than the government.” (For Tech, continued on page 44 43 Tech, continued from page 43 reasoning that Google’s programming Without Borders (RSF), the Electronic decisions resemble the protected Frontier Foundation (EFF), and the not present, prompting backlash from editorial judgment of newspaper editors Committee to Protect Journalists (CPJ), lawmakers, including Sen. Mark Warner to decide what to cover. Zhang v. also called on the company to cancel (D Va.), who said in a September 10 Baidu.com, Inc., 10 F. Supp. 3d 433, the project, highlighting concerns over statement to reporters, “Google is sadly 435 (S.D.N.Y. 2014); S. Louis Martin Chinese state data collection practices mistaken if they think they’re off the v. Google, Inc. No. CGC14539972 (Cal. used to crack down on journalists. “The hook after being a no show.” Superior Court 2014). Eric Goldman, project, codenamed ‘Dragonfl y’, would However, after lawmakers’ continued co director of the High Tech Law represent an alarming capitulation by to condemn Google, multiple media Institute at Santa Clara University, told Google on human rights. The Chinese outlets reported Pichai met privately the Post, “The courts have uniformly government extensively violates with several Republican lawmakers ruled that search results are protected the rights to freedom of expression on September 28, where he agreed and privacy; by to testify before the House Judiciary accommodating the Committee in November 2018 to address “It’s not clear what the [DOJ is] Chinese authorities’ concerns over the company’s business investigating. If they’re investigating repression of practices, including claims of bias. “We dissent, Google remain committed to continuing an companies without a clear reason, would be actively active dialogue with members from both it’s possible that the investigations participating in sides of the aisle, working proactively themselves will stifl e free speech.” those violations with Congress on a variety of issues, for millions of explaining how our products help — Alex Abdo , internet users in millions of American consumers and Knight First Amendment Institute senior staff attorney China,” the letter businesses, and answering questions as read. “The Chinese they arise,” Pichai said in a September government runs 28 emailed statement to The Wall Street speech” and warned that the DOJ’s one of the world’s most repressive Journal. As the Bulletin went to press, investigation “could be a very serious Internet censorship and surveillance the date for the hearing had not been set. broadside against the entire Internet regimes. Human rights defenders and Following the September 5 hearing, industry coordinated by multiple layers journalists are routinely arrested and the DOJ released a statement by of government.” imprisoned solely for expressing their spokesman Devin O’Mally, who warned Alex Abdo, a senior staff attorney at views online.” tech companies to refrain from political the Knight First Amendment Institute Lokman Tsui, Google’s head of free bias. “The Attorney General has at Columbia University, told The expression for Asia told The Intercept on convened a meeting with a number of Washington Post , “It’s not clear what August 10 that the Dragonfl y project is “a state attorneys general this month to the [DOJ is] investigating. If they’re really bad idea.” Tsui added, “If Google discuss a growing concern that these investigating companies without a wants to go back, it would be under companies may be hurting competition clear reason, it’s possible that the the terms and conditions that Beijing and intentionally stifl ing the free investigations themselves will stifl e free would lay out for them. I can’t see how exchange of ideas on their platforms,” speech.” Google would be able to negotiate any O’Malley said. As the Bulletin went to Google also faces scrutiny kind of a deal that would be positive. press, the DOJ had made no further internationally regarding censorship I can’t see a way to operate Google announcements regarding a potential of search results. On Aug. 1, 2018, search in China without violating investigation into tech companies’ The Intercept reported that Google widely held international human rights alleged political bias. was considering launching a project standards.” First Amendment advocates, named “Dragonfl y,” which would offer However, on October 15, Pichai legal scholars, and lawmakers from censored versions of its search engine doubled down on the company’s push both parties argued that government and news application for the Chinese into China. “It turns out we'll be able regulation of search results and other market. Google had previously refused to serve well over 99 percent of the online content could violate the First to continue to block search results at the queries,” he said at Wired magazine’s Amendment. Sen. John Neely Kennedy request of the Chinese state in 2010. The 25th anniversary celebration. In (R La.) underlined his hesitancy project has drawn criticism from free addressing concerns over access to regarding such regulation to The press advocates, Google employees, and information, freedom of expression Washington Post on August 28. “We political fi gures. and user privacy, Pichai stated “People can all agree on one thing: Poison is In an Oct. 4, 2018 speech to the don’t understand fully, but you’re being spread on the Internet, but what Hudson Institute, Vice President Mike always balancing a set of values, but is poison? Somebody is going to have to Pence called on Google to “immediately we also follow the rule of law in every step in and be a neutral arbiter of what end development of the Dragonfl y app country.” can go on, and what can’t. I don’t want to that will strengthen the communist see the government do that,” he said. party’s censorship and compromise the SARAH W ILEY State courts in New York and privacy of Chinese customers.” SILHA R ESEARCH A SSISTANT California have previously found In an Aug. 28, 2018 open letter to Google’s search engine results are Google, several human rights and press protected by the First Amendment, advocacy groups, including Reporters 44 Stearns County Releases State Documents from the Wetterling Investigation n Sept. 20, 2018, multiple news circumstances in which “the release of the the Release of ‘Personal’ Information” in outlets reported that following data would jeopardize another pending the Summer 2017 issue.) a press conference by Sheriff civil legal action, and except for those On Sept. 19, 2018, the day before Don Gudmundson, the Stearns portions of a civil investigative fi le that are the investigative fi le was released, the County Sheriff’s Offi ce classifi ed as not public data by this chapter Wetterling family issued a statement, O(Stearns County) released a 41,787 page or other law.” which read in part, “It is diffi cult for us investigative fi le related to the 27 year In December 2017, the federal to relive those dark days. With time, our investigation into the 1989 abduction government also fi led a motion to family is healing and getting stronger and and murder of intervene, asserting that the documents we appreciate all of the efforts to make Jacob Wetterling. created by the Federal Bureau of things better for future victims of crime, PRIVACY Following the Investigation (FBI) during the investigation their families and for all of us. Our hearts release of the needed to be returned to the agency, hurt for anyone who is pained or hurt from investigative fi le, several observers therefore making the records subject the release of this fi le. Clearly, changes are explained the importance of releasing to the federal Freedom of Information still needed.” The full statement is available the documents, as well as the ethical Act (FOIA), 5 U.S.C. § 552, rather online at: https://www.mprnews.org/ considerations journalists should consider than the MGDPA. On March 29, 2018, story/2018/09/19/jacob wetterling family before reporting on the contents of the fi le. Carrott granted a motion by the federal statement before investigative fi le release. In June 2017, Stearns County government for summary judgment, On September 20, Stearns County announced it would release more than ordering Stearns County to return the held a press conference for the release 56,000 pages of information and 10,000 portion of the investigative fi les originating of the investigative fi les. According to total documents related to the abduction with the FBI to the agency. Minnesota Public Radio (MPR) on the and murder of 11 year old Jacob Wetterling However, in an April 19 ruling, Carrott same day, Gudmundson delivered “a brutal in St. Joseph, Minn. The case fi le included granted a motion for summary judgement assessment . . . of the cascading errors and documents compiled by local, state, and by the media intervenors regarding the internal friction among law enforcement federal authorities. Previously, on Sept. 1, state documents in the Wetterling fi le not that let Jacob Wetterling’s killer stay free 2016, Danny Heinrich, who was already created by the FBI. Wetterling v. Stearns for decades even as the clues pointed jailed on federal child pornography County, No. 73 CV 17 4904 (April 19, 2018). overwhelmingly to [Heinrich].” One charges, confessed to kidnapping and Carrott found that the MGDPA allowed for particular revelation was that Heinrich killing Jacob in October 1989. the release of “inactive law enforcement was arrested at a bar in Roscoe, Minn. in On June 2, 2017, Patty and Jerry investigative fi le documents” and that February 1990, a few months after Jacob Wetterling, Jacob’s parents, fi led a lawsuit “a constitutional right of informational went missing in October 1989. However, in the Minnesota District Court for the privacy does not apply to prohibit the the “inexperienced FBI profi lers” handling Seventh Judicial District, requesting disclosure of government data classifi ed as the case concluded after an interrogation that the court halt the release of some public by state statute.” that Heinrich did not abduct Jacob. documents in the investigative fi le, In a July 21, 2018 interview with the Gudmundson called the interrogation and claiming that several documents include Minneapolis Star Tribune, Patty Wetterling subsequent release of Heinrich a “fatal “highly personal details.” Patty Wetterling said that her family had decided not to fl aw.” and Jerry Wetterling v. Stearns County, appeal Carrott’s order, calling it a “tough Gudmundson added that the No. 73 CV 17 4904 (2017). On the same day, journey.” In an interview with WCCO TV, investigation went “off the rails” and that it Stearns County (Minnesota) District Court Minneapolis’ CBS affi liate, Doug Kelley, “wasn’t just on the wrong path, but on the Judge Ann Carrott issued a temporary the Wetterlings’ attorney, said that the wrong freeway.” He also noted that anyone restraining order (TRO) enjoining Stearns family “just got tired” of fi ghting. (For who reads the state investigative fi le “will County from “disseminating or disclosing more information on the background of not know about . . . some consequential the personal information contained in the the Wetterling investigation, Carrott’s events in the Wetterling case” because the Jacob Wetterling criminal investigative fi le rulings, and the Wetterlings’ decision, see release did not include the FBI’s fi les. to any person.” “Wetterling Family Decides Not to Appeal Additionally, Gudmundson indicated On June 27, 2017, ten media Judge’s Order Requiring the Release that the MGDPA may be amended in organizations and transparency advocates, of State Documents from Wetterling the following legislative term to address including the Silha Center for the Study of Investigation” in the Summer 2018 issue situations like the release of the Wetterling Media Ethics & Law (media intervenors), of the Silha Bulletin, “Judge Orders investigative fi le. “Our release of these fi les fi led a “complaint in intervention,” arguing Certain Files from Wetterling Investigation is done, according to Minnesota state law against the Wetterlings’ claim that the Be Returned to FBI, Allows Release of and according to what the legislature has information in the investigative fi le was Remaining State Documents” in the Winter/ set down as what are data privacy issues,” “protected from disclosure by the state Spring 2018 issue, “Media Groups Allowed he said. “And some of those [issues], in and federal constitutions,” instead of the to Join Lawsuit over Access to Documents my view, and certainly on the part of the Minnesota Government Data Practices in Wetterling Investigation; Dispute Wetterling family, . . . certainly need some Act (MGDPA), Minn. Stat. § 13.01 Expands to over Half the Case File” in adjustment in the upcoming legislative et seq. The statute classifi es information the Fall 2017 issue, and “Media Groups session.” However, Gudmundson did and documents from closed or inactive and Transparency Advocates Challenge investigations as “public data,” except in Family’s Lawsuit, Judge’s Ruling Halting Wetterlings, continued on page 46 45 Wetterlings, continued from page 45 letters from psychics, who claimed they it took many years,” she said. “I think had leads from the “great beyond.” it’s worth asking why. What happened? quote former U.S. Supreme Court Justice Fourth, there were a variety of What did they do right? What did they Louis Brandeis, who said, “sunlight is the documents and information about Daniel do wrong? What was the role of the FBI? best disinfectant” regarding the release of Rassier, a music teacher who lived with All important questions.. . . It’s always investigative and other law enforcement his parents near the Wetterlings, who painful to examine those kinds of things, records. The full press conference is was falsely targeted as a possible suspect but those are questions that have to be available online at: https://www.mprnews. beginning as early as 2002. For example, asked.” Kirtley added, “This is essential to org/story/2018/09/20/jacob wetterling several documents included a list of every accountability.. . . Holding law enforcement probe failures documents released. As marathon Rassier ran in 2006, as well as accountable for what they do.” the Bulletin went to press, the Minnesota a log of his movements in 2007, including In a September 20 editorial, the legislature had not formally introduced an one instance where he stopped to get gas. Mankato Free Press argued that “[w]ithout amendment to the MGDPA related to the Fifth, a fi le labeled “Transcripts 1989, the release of the documents, the mistakes Wetterling case fi le. Part 1” includes a transcript of a recording of the investigation would not have been Former FBI investigator Al Garber of Jacob in which he describes his “favorite revealed and the government would have attempted to refute some of Gudmundson’s things,” including that his favorite hobby escaped accountability in this tragic case comments during the news conference, was collecting football cards.” Sixth, the that was, according to Gundmundson [sic], but was asked to leave the room, investigative fi le contained a transcript of a poorly handled by investigators.” according to the St. Cloud Times on 911 call from Merlyn Jerzak, a neighbor of In an interview with KARE TV, the September 20. Garber instead spoke to the Wetterlings, after he learned from his Twin Cities’ NBC affi liate, Hubbard School reporters following the press conference, daughter, Jacob’s brother, Trevor, and their of Journalism and Mass Communication questioning how Gudmundson approached friend Aaron Larson that Jacob had been professor Chris Ison addressed the ethical his review of the case. “I don’t know abducted. considerations journalists face when what [Gudmundson’s] motive is in this Finally, numerous photographs are reporting on sensitive topics, including presentation, frankly, but I think that contained in the investigative fi le, including the Wetterling investigative fi le. He said there are some important things you of footprints matched to Heinrich early on journalists must consider two values when need to know to make this a positive in the investigation, as well as tire tracks writing about the fi les: to seek and report experience,” Garber said. “When he began and other footprints at the scene. Links the truth and to minimize harm to innocent the presentation saying it went ‘off the to these materials are available online at: people. rails,’ that was a clue to me.. . . He has https://www.twincities.com/2018/09/21/ Ison continued, “The fi rst thing I would his beliefs . . . and he was gonna make jacob wetterling kidnapping investigation do is make sure there are a lot of voices it fi t the facts in this case and I think documents stearns county minnesota in the room when we are making these that was wrong.” He added, “Why was danny heinrich/. decisions. I would tell my reporters [to] [the investigation] a failure? We had no On Sept. 20, 2018, WCCO provided look for what has important news value evidence.” several additional documents in the for the general public, and to be aware Garber also took issue with investigative fi le. One such document of anything that is harmful to individuals Gudmundson’s comments about the FBI’s detailed how the testimony by Trevor that is not newsworthy, and to be sensitive interrogation of Heinrich, stating, “To say Wetterling and Aaron Larson, as well as about that.” He added, “There is always that this was an uninformed interview the victims of a string of assaults in the somebody that doesn’t want a story out done by incompetent people just hurts, it 1980s of boys in Paynesville, Minn., all there, and that doesn’t mean we don’t run really hurts and it’s not true.” He added, gave similar descriptions of the suspect, it. We have to weigh that against doing the “Don wasn’t there. He didn’t see the which were similar to descriptions of public good of doing that story.” day to day operation.” Heinrich. Another document details how a KARE reported that its social media On September 21, the Twin Cities victim of the Paynesville incidents alleged pages were fi lled with requests by Pioneer Press reported that the released that the assaults were related to Jacob’s viewers that the news outlet maintain the case fi les contained a variety of different disappearance. Links to these documents Wetterlings’ privacy and not discuss the materials on various subjects. First, the and others are available online at: https:// contents of the investigative fi le. KARE fi les included transcripts of jailhouse minnesota.cbslocal.com/2018/09/20/jacob issued a statement in response, which read phone conversations between Heinrich wetterling key investigation fi les released/. in part, “To our KARE community, we hear and his brothers. One such transcript, Following the release of the documents, you. We’ve reviewed your concerns and according to the Pioneer Press, quoted several observers explained why it was appreciate your feedback. We’ve had many Heinrich describing his mindset after important that the investigative fi le be discussions in the newsroom about how the murder of Jacob: “I got home that made public. In a September 20 interview to handle the Wetterling case fi le release night, . . . I’m gonna tell you the truth, with KSTP TV, the Twin Cities’ ABC press conference. As journalists, we feel and I cried. I could, my god, what have I affi liate, Silha Center Director and Silha it’s important for citizens to have access to done.. . . The wonderful, I don’t know, I’m Professor of Media Ethics and Law Jane investigative records and please trust that trying to think of what was wrong. I don’t Kirtley argued, “It’s not just a question of we are not interested in re victimizing the know what went, went wrong, everything saying, ‘We as journalists want this.. . . It’s Wetterling family; we have no intention of went wrong. S—, I don’t know what to that you, the public, have a right to see revealing sensitive family information. We think.” this.” will focus on the investigation and hold the Second, the fi les contained documents Kirtley further contented that the fi les agencies involved accountable.” indicating that investigators looked into were of public concern. “We know with hundreds of leads, as well as every known broad strokes what the outcome of this SCOTT M EMMEL sex offender in Minnesota about a decade investigation was. We also know that SILHA BULLETIN E DITOR after the crimes. Third, the fi les included 46 Ninth Circuit Ruling and Federal Lawsuit Target U.S. Customs and Border Protection for First and Fourth Amendment Violations n the second half of 2018, a circuit near the U.S. Mexico border, requested border inspection, the offi cers radioed court ruling and a federal lawsuit permission to photograph a vehicle for backup. Five to seven CBP agents addressed First and Fourth inspection area in order to conduct his questioned Ramirez and, without his Amendment concerns prompted research into the effects of emissions consent, confi scated his cellphone by actions by U.S. Customs and at such locations. Askins called CBP and deleted the photos he had taken IBorder Protection (CBP) agents. On to request permission to take the from the bridge. Ramirez alleged that Aug. 14, 2018, the U.S. Court of Appeals photographs and although he was told following these events, he refrained for the Ninth Circuit held that the First that it would be “inconvenient,” his from documenting matters and events Amendment request was neither approved nor denied. visible from public locations near the LAW right to record On April 19, 2012, Askins stood U.S. border, citing CBP policies and past ENFORCEMENT law enforcement on a public street on the U.S. side enforcement against him. offi cers in the of the border and took three or four In October 2012, Askins and Ramirez exercise of their offi cial duties in public photographs of a “secondary” inspection fi led a lawsuit in the U.S. District spaces extends to border patrol agents, area. At no point did he cross the border Court for the Southern District of reviving a lawsuit brought against CBP or pass through border security. Multiple California, alleging that CBP’s policies by two border policy advocates whose CBP offi cers summarily approached and practices violated their First and photographs at U.S. ports of entry in Askins and demanded that he delete the Fourth Amendment rights. They also Southern California were confi scated and photographs. When Askins refused, the sought declaratory and injunctive relief, destroyed by border agents. On Aug. 23, offi cers searched and handcuffed him, damages, and costs and attorneys’ fees. 2018, an American Muslim woman fi led and also confi scated his camera. Askins The government moved to dismiss, citing a Rule 41(g) Motion, otherwise known was also detained inside an inspection two CBP policies. as a “Motion to Return Property,” against area building for approximately 30 One of the policies was CBP Directive CBP, requesting that the agency return minutes, during which CBP had deleted No. 5410 001B (Directive), which and delete data copied from her iPhone all but one of his photographs of the was released in 2009. The Directive after it was seized in February 2018 inspection area. “defi nes guidelines relating to the and retained until July. The motion also Askins alleged that he had wanted to disclosure of offi cial [CBP] information requested that CBP identify whether it photograph “matters and events exposed to accredited news organizations, disclosed the data to a third party, and to public view from outdoor and exterior mass media, published professional argued that the seizure, retention, and areas of the Calexico port of entry” and journals, and stakeholder groups.” potential copying and sharing of her data, “in the area immediately surrounding Section 6.2 provides procedures for without reasonable suspicion, probable the Calexico port of entry building.” He media requests to photograph suspects. cause, or a warrant, violated the Fourth claimed that he refrained from doing It states that “[d]ecisions to allow Amendment. On October 31, the plaintiff so in light of the CBP policies and the any photographing, videotaping or reached a settlement with CBP, which enforcement of those policies against fi lming by the media at CBP facilities agreed to delete the seized data. him. shall be made in consultation with the The case arose for the second appropriate Public Affairs Specialist and Ninth Circuit Ruling on plaintiff, Christian Ramirez, a policy with the concurrence and control of the Photographing Border Agents advocate who works on human rights appropriate CBP supervisor.” The section On Aug. 14, 2018, the San Francisco issues in border communities, in June further provides that “[p]hotographing of Chronicle reported that the U.S. Court 2010 when he and his wife crossed the suspects/detainees by news organizations of Appeals for the Ninth Circuit had U.S. border into Mexico at a port of entry in public places . . . is neither encouraged reinstated a lawsuit by two border policy pedestrian entrance. Upon returning nor discouraged,” and states that advocates whose photographs at U.S. the same day, Ramirez, while standing “CBP personnel shall not interfere ports of entry in Southern California on a public pedestrian bridge, noticed with photographing suspects in public were confi scated and destroyed by several male CBP offi cers at a security places.” Finally, the Directive prohibits U.S. Customs and Border Protection checkpoint inspecting and patting down the “[d]etention of persons or media (CBP). Askins v. U.S. Department of only female travelers. Ramirez took 10 and/or . . . of recording equipment, fi lm Homeland Security, 899 F.3d 1035 (9th photographs with his cellphone camera, or notes . . . unless the owner or operator Cir. 2018). The Ninth Circuit held that the citing concerns that the offi cers may of such materials has violated federal First Amendment protects the right to have been acting inappropriately. law, unlawfully breached the security of a photograph and record “matters of public Ramirez and his wife were summarily CBP facility, or has endangered the safety interest,” such as the offi cial duties of approached by private security offi cers, of CBP personnel.” law enforcement offi cials, which include who ordered that they stop taking The second policy was CBP’s “Ground border agents. photos and produce their identifi cation Rules for News Media Representatives The case arose in April 2012 when documents. When Ramirez refused when Visiting Southern California Ports Ray Askins, a U.S. citizen concerned to provide the documents, stating with environmental health hazards that they had already passed through Violations, continued on page 48 47 Violations, continued from page 47 (RCFP) and seven media organizations Second, Bybee wrote that the fi led an amici curiae brief in support “government’s ability to regulate speech of Entry” (Ground Rules), which requires of Askins and Ramirez. The brief in a traditional public forum, such as “members of the press who desire to “emphasize[d] the importance of this a street, sidewalk, or park, is ‘sharply fi lm, conduct interviews or engage in case to the press’s ability to report on circumscribed,’” citing the 1983 U.S. any other media activity” to “clear their issues that take place at the United Supreme Court case Perry Educ. Ass’n visit in advance with appropriate CBP States’ border.” The brief argued that v. Perry Local Educators’ Ass’n , 460 U.S. offi cials.” The Ground Rules further the CBP policies “severely hinder the 37, 45, 103 (1983). He also explained that state that “[r]eporters who do not have ability of the press to gather the news “content based restrictions of speech” such clearance may be denied access to and inform the public — particularly in are subject to strict scrutiny. port property,” and “photographers and cases of breaking news where permission Bybee disagreed with the district camera crews” must “be escorted by a cannot be sought in advance — and court’s reasoning that the CBP policies designated offi cer at ALL times while on essentially grant CBP veto power over survived strict scrutiny because of port property,” without exception. the First Amendment right to photograph “the extremely compelling interest of On Sept. 13, 2013, the Southern and record government activity.” border security” and the government's District of California held that Askins The brief further argued that the CBP general interest in “protecting United and Ramirez had suffi ciently alleged the policies “infringe upon the public and States territorial sovereignty.” He cited policies were content based restrictions press’s well established First Amendment the Ninth Circuit’s 2013 ruling in U.S. on speech in a public forum, triggering right to photograph and record offi cial v. Cotterman in which the court held strict scrutiny, meaning the restriction conduct generally.” The brief continued, that “[e]ven at the border, we have of speech must be necessary to serve “Courts have recognized several rejected an ‘anything goes’ approach.” a compelling government interest and signifi cant public policy rationales behind 709 F.3d 952, 957 (9th Cir. 2013). (For be “narrowly tailored” to achieve that the First Amendment right to record more information on Cotterman, see interest. However, the court ruled that police activity, including the ability to “U.S. Customs and Border Protection both policies survived strict scrutiny hold public offi cials accountable for Searches of Electronic Devices, Data at because they serve “perhaps the most misconduct and the promotion of trust U.S. Borders Raise Privacy and Legal compelling government interest: in the community that comes with such Concerns” in the Summer 2017 issue of protecting the territorial integrity of the transparency. These rationales are the Silha Bulletin.) Bybee further wrote United States” and there were no less equally applicable to the recording of that it is “the government’s burden to restrictive alternatives. CBP offi cials in the performance of their prove that these specifi c restrictions In 2015, the plaintiffs fi led an amended offi cial duties.” are the least restrictive means available complaint in which they formally On Aug. 14, 2018, Judge Jay S. Bybee to further its compelling interest,” challenged the CBP policies under the wrote for the unanimous Ninth Circuit, and that they “cannot do so through First Amendment, but dropped the and initially addressed the “law of the general assertions of national security, Fourth Amendment claims and some case doctrine.” Bybee held that the particularly where plaintiffs have alleged defendants. The amended complaint doctrine “does not preclude a court from that CBP is restricting First Amendment argued that the policies constituted prior reassessing its own legal rulings in the activities in traditional public fora such restraints and were unreasonably applied same case” and “does not apply here.” He as streets and sidewalks.” to Askins and Ramirez. The complaint reasoned that the district court dismissed Finally, Bybee held that Askins and further alleged that the CBP interpreted the plaintiffs’ First Amendment claim, Ramirez “adequately pleaded their and enforced the Directive and Ground but without prejudice, meaning “it did claims.” However, he cautioned that Rules as a “total ban on all photography not enter a fi nal judgment in the case.” his opinion does not “mean to suggest by any person from any area within a The district court also granted the that all or even any areas within a port port of entry without prior authorization plaintiffs leave to amend their complaint of entry are necessarily public fora, from CBP.” Askins and Ramirez alleged “with respect to the constitutionality or that allowing the public to transit that such bans apply to public streets of the CBP photography policy.” Thus, through a port of entry for the purpose and sidewalks, which they contended Bybee held that the district court “should of crossing the border creates a public constitute traditional public fora. simply have considered the amended forum.” Bybee concluded that “further On March 23, 2016, Southern District complaint on its merits.” factual development is required before of California Judge Thomas J. Whelan Bybee next turned to the plaintiffs’ the district court can determine what held that the court was “precluded” First Amendment claims. He fi rst wrote restrictions, if any, the government may by the “law of the case doctrine” from that the First Amendment “protects the impose in these public, outdoors areas.” revisiting its prior order. Askins v. U.S. right to photograph and record matters He therefore vacated the district court Department of Homeland Security, of public interest,” including “the right to order and remanded the case for further 2016 WL 4597529 (S.D. Cal. 2016). record law enforcement offi cers engaged proceedings. The full ruling is available Whelan reasoned that the plaintiffs had in the exercise of their offi cial duties in online at: http://cdn.ca9.uscourts.gov/ brought an “identical issue,” but failed public places,” which, in this case, were datastore/opinions/2018/08/14/16 55719. to “identify any clear error, intervening border agents. (For more information pdf. change in law, new evidence, changed on the First Amendment right to record As the Bulletin went to press, no circumstances, or manifest injustice on duty law enforcement offi cers, further action had been taken in the case. resulting from the previous decision.” see “Third Circuit Declares a First In an Aug. 14, 2018 interview with On Oct. 3, 2016, the Reporters Amendment Right to Record On Duty the San Francisco Chronicle, American Committee for Freedom of the Press Police Offi cers” in the Summer 2017 issue Civil Liberties Union (ACLU) attorney of the Silha Bulletin.) 48 Mitra Ebadolahi, who represented Switzerland. While passing through the Lazoja’s brief in support of the Rule Askins and Ramirez, said that the ruling CBP primary inspection, a CBP offi cer 41(g) Motion (brief) fi rst alleged that reaffi rms that “the First Amendment directed Lazoja to move to a separate line CBP did not follow its own policies, applies to all law enforcement,” including where two additional offi cers asked her including its new directive released on the Border Patrol, “and that calling several questions, including where she Jan. 4, 2018 titled “Border Searches of something, quote unquote, ‘the border’ had traveled. Lazoja, a Muslim woman Electronic Devices.” According to the doesn’t remove it from constitutional who wears a hijab in accordance with brief, Directive No. 3340 049A requires protection.” her religious beliefs, was then called into that any device detained by CBP agents RCFP attorney Caitlin Vogus told the a small room where two offi cers further must be returned after a maximum of fi ve San Francisco Chronicle that the ruling questioned her about her travels and days, unless “extenuating circumstances was “timely” because “immigration is a whether she was ever a refugee. exist.” The Directive also states that “if huge story” and should not be shielded When asked whether she carried any after reviewing the information . . . there from public view. electronic devices, Lazoja produced is no probable cause to seize the device her iPhone with the accompanying or the information contained therein, any Traveler Files Lawsuit Against U.S. subscriber identity module (SIM Card), copies of the information held by CBP Border Agents Over Seized iPhone, which contained photos of her “in a state must be destroyed, and any electronic Reaches Settlement with U.S. of undress without her hijab,” as well as device must be returned.” The brief Customs and Border Protection privileged legal communications with the alleged that it was likely that CBP made On Aug. 23, 2018, several news outlets Council on American Islamic Relations copies of the information contained in reported that Rejhane Lazoja, whose (CAIR) in New York, according to the Lazoja’s iPhone because CBP agents have iPhone was seized by U.S. Customs and complaint. Lazoja was repeatedly asked “a stated policy, custom, and practice Border Protection (CBP) agents upon to unlock her iPhone using the necessary of copying digital information from returning from a trip to Switzerland alphanumeric password. After Lazoja devices detained at the border.” (For in February 2018, had fi led a lawsuit continued to refuse, two CBP offi cers, more information on the new directive, against CBP in the U.S. District Court identifi ed as “John Doe” and “Jane Doe” see “U.S. Customs and Border Protection for the District of New Jersey, alleging in the complaint, accompanied her to Actions Continue to Raise First and that the agency violated her Fourth the baggage claim area and searched her Fourth Amendment Questions” in the Amendment rights. Lazoja v. Nielsen, luggage. Summer 2018 issue of the Silha Bulletin.) No. 2:18 cv 13113 (D.N.J. 2018). The The two offi cers, as well as an Second, the brief argued that the lawsuit, which was fi led as a Rule 41(g) additional offi cer identifi ed as “John Doe search and seizure of Lazoja’s phone Motion, requested that CBP return and 2” “did not return the iPhone” and instead violated the Fourth Amendment, which delete any data they copied from Lazoja’s provided Lazoja a receipt documenting generally requires a warrant supported phone, as well as disclose any third the seizure of the device and SIM card, by probable cause to search, seize, or parties that received the information. On and indicated that they were sent to a copy digital storage devices, or to share Oct. 31, 2018, Ars Technica reported that U.S. Department of Homeland Security copies with third parties. Lazoja and CBP reached a settlement in (DHS) lab. The phone and SIM Card were The brief cited several cases, which federal authorities agreed to delete not returned until July 6, 2018. including Riley v. California in which the seized data. On July 9, Lazoja requested that the U.S. Supreme Court concluded that Rule 41(g) of the Federal Rules of CBP “confi rm whether [it] had made “the ultimate touchstone of the Fourth Criminal Procedure, titled “Motion any copies of the [iPhone data]” and Amendment is reasonableness” and to Return Property,” provides that to “provide a legal basis for doing so; that “reasonableness generally requires “[a] person aggrieved by an unlawful expunge any copies of the [d]ata; and the obtaining of a judicial warrant.” search and seizure of property or by the confi rm whether [CBP] shared copies 134 S.Ct. 2477 (2014). The Supreme deprivation of property may move for the of the [d]ata with any third parties.” Court further held that cell phones “are property’s return.” The rule continues, According to the complaint, Lazoja had now such a pervasive and insistent “The motion must be fi led in the district not heard a response to her requests, part of daily life that the proverbial where the property was seized. The court prompting her to fi le the Rule 41(g) visitor from Mars might conclude they must receive evidence on any factual Motion. were an important feature of human issue necessary to decide the motion. On Aug. 23, 2018, Albert Fox Cahn, anatomy.” The court ultimately held that If it grants the motion, the court must the legal director for CAIR, which was individuals’ privacy interests outweighed return the property to the movant, but representing Lazoja, told Ars Technica government interests in warrantless cell may impose reasonable conditions to that authorities “forensically cracked” phone searches incident to arrest. (For protect access to the property and its her phone and copied its contents more information on the Riley decision, use in later proceedings.” According to before returning it to her. However, he see “Supreme Court Says Warrants are Ars Technica on August 23, this rule is also confi rmed that CBP provided “no Required to Search Cell Phone Data; “[n]ormally . . . invoked for tangible items justifi cation for why they took the phone” Possible Implications for NSA Telephony seized as part of a criminal investigation, and “never accused [Lazoja] of a crime.” Metadata Collection” in the Summer 2014 not for digital data that can easily be Lazoja’s lawyer, Jay Rehman, who also issue of the Silha Bulletin.) copied, bit for bit.” works for CAIR, similarly wrote in court The brief next cited Alasaad v. According to the complaint, the papers that Lazoja never received any Nielsen in which U.S. District Court case arose on Feb. 26, 2018 when assurance that CBP does not possess for the District of Massachusetts Judge Lazoja arrived at the Newark Liberty information from her phone, according to International Airport with her six year the New York Post on August 24. Violations, continued on page 50 old daughter after a trip to Zurich, 49 Violations, continued from page 49 Concerns” in the Summer 2017 issue of In an August 24 interview with the Silha Bulletin.) Gizmodo, Cahn explained why searches Denise J. Casper applied Riley to the One additional case cited by the of electronic devices are “far more border search context, holding that brief was Carpenter v. United States intrusive” than luggage or physical fi les. although border searches have been in which the Supreme Court, in a 5 4 “We’re talking about an entire lifetime’s recognized as an exception to the Fourth decision, held that government actors worth of records,” he said. “We’re talking Amendment warrant requirement, “the need a warrant to obtain historical about real time location data. We’re exception is not limitless.” She further data from cell phone carriers detailing talking about all the incredibly intimate held that “[b]order searches must still the movements of a cellphone user, information that we all have on our cell be ‘reasonable,’ and the Court must known as cell site location information phones and any sort of attempt by the still — as with searches conducted in (CSLI). Carpenter v. United States, government to copy that information, the interior — balance ‘the sovereign’s 585 U.S. ___, 2018 WL 3073916 (2018). to seize that information, should require interests’ with the privacy interests of The brief argued that the case a warrant because of how incredibly the individual.” No. 17 cv 11730 DJC, demonstrated even further heightened intrusive it is.” 2018 WL 2170323 (D. Mass. 2018). (For privacy interests related to cell phones Cahn added, “To be seen by strangers, more information on Alasaad v. Nielsen, and location data. (For more information strange men, without that head covering, see Federal Judge Allows Lawsuit on Carpenter, see “U.S. Supreme Court even if it’s in photographic form, that’s to Continue Over First and Fourth Rules Law Enforcement Must Obtain an incredibly invasive and traumatic Amendment Concerns of Warrantless Warrant To Access Individuals’ Historical experience, and something that Border Searches and Seizures of Cell Site Records” in the Summer 2018 compounds the sense of invasion from Electronic Devices in “U.S. Customs issue of the Silha Bulletin.) this entire experience.” and Border Protection Actions Continue Third, the brief alleged that even if A CBP spokesperson said in an to Raise First and Fourth Amendment CBP could constitutionally seize Lazoja’s August 24 email to Gizmodo that “as a Questions” in the Summer 2018 issue of iPhone, the “impermissibly delayed matter of policy, we do not comment the Silha Bulletin.) return of said property, and failure on pending litigation.” However, the The brief also cited United States v. to return her [d]ata, constitutes an email noted that in fi scal year 2016, the Kim, which revolved around a DHS agent independent violation of the Fourth agency processed more than 390 million seizing the laptop of Korean businessman Amendment” because “[p]rolonged arrivals and performed 23,877 electronic Jae Shik Kim and shipping it to a forensic detentions of property must be media searches, which represents .0061 specialist in San Diego. 103 F.Supp. 3d reasonable for their duration.” percent of arrivals. Gizmodo noted that 32, 59 (D.D.C. 2015). District of Columbia Finally, the brief asserted that any that was an increase from 2015 when Judge Amy Berman Jackson ruled that retention of data, or sharing of data CBP searched the electronic media of the search of Kim’s laptop was not with third parties, without a warrant .0012 percent of arrivals. Ars Technica “reasonable” given the totality of the supported by probable cause, violates reported on August 23 that in 2017, out of circumstances surrounding the search. the Fourth Amendment. It argued that 397 million international travelers, there She wrote that the forensic analysis there is “no possible justifi cation” for were only 30,200 digital border searches “did not possess the characteristics CBP retaining the iPhone for more than conducted, approximately 0.007 percent, of a boarder search” and that it “more 120 days without a warrant, as well as though this was 0.005 percent more than resembled the common nonborder not returning any copies of Lazoja’s data 2016. search based on individualized suspicion, and failing to affi rm whether it destroyed On Oct. 31, 2018, Ars Technica which must be prefaced by the usual copies of the data or sent it to any third reported that Lazoja had reached a warrant and probable cause standards.” parties. settlement with CBP in which federal Jackson added that the court found the The motion requested that the district authorities agreed to delete the seized search of Kim’s laptop using specialized court order CBP to return Lazoja’s data. In an interview with Ars on the forensic software “was supported by so data, expunge any copies, disclose same day, Cahn said that Lazoja was little suspicion of ongoing or imminent all third parties who received and/or pleased with the result. “For us, it’s a criminal activity, and was so invasive of obtained copies of the data, and provide really exciting outcome, because this Kim’s privacy and so disconnected from “information about the basis for the novel litigation approach worked and not only the considerations underlying seizure and retention of the property.” would get us a resolution really quickly, the breadth of the government’s authority The motion also sought a declaratory and it gave us a way to get our client’s to search at the border, but also the ruling that CBP and its agents violated data deleted,” he said. “We were prepared border itself, that it was unreasonable.” the Fourth Amendment. Lastly, the for much more pushback. It’s incredibly (For more information on United States motion asked the court to enjoin the useful to have this tool in our toolkit for v. Kim , see 2009 Policy Continues to defendants from similar practices when phones are taken in the future. I Raise Legal Questions Amid Increase without a warrant supported by probable can’t see any reason why this couldn’t be in Warrantless Searches at U.S. Borders cause. The full brief in support of the done whenever another traveler is facing in “U.S. Customs and Border Protection Rule 41(g) Motion is available online this sort of phone seizure.” Searches of Electronic Devices, Data at at: https://www.documentcloud.org/ U.S. Borders Raise Privacy and Legal documents/4781285 Document.html. SCOTT M EMMEL SILHA BULLETIN E DITOR
50 Federal Judge Indicates the Public and the Press Have First Amendment Right to Witness All Portions of California Executions n Aug. 17, 2018, multiple On May 3, the State fi led a partial U.S. Court of Appeals for the Ninth Circuit news outlets reported that motion to dismiss, contending that the held that the First Amendment provides Judge Richard Seeborg of media outlets failed to “state a claim the public and the press a qualifi ed right the U.S. District Court for of a First Amendment right to observe to access governmental proceedings like the Northern District of the chemical preparation and medical executions. The Ninth Circuit wrote that OCalifornia denied a motion by California assistance portions of California’s “the public enjoys a First Amendment offi cials seeking to dismiss a lawsuit execution process.” The motion further right to view executions from the challenging state protocols barring the alleged that the media outlets did not moment the condemned is escorted into public and the plead “facts, nor law, showing these the execution chamber, including those press from viewing portions of the execution should be open ‘initial procedures’ that are inextricably ACCESS portions of an to public observation.” intertwined with the process of putting inmate execution, During an August 16 hearing, Deputy the condemned inmate to death.” including the preparation and injection of Attorney General Jay Goldman, who Third, Seeborg addressed the State’s lethal drugs, as well as medical assistance represented the CDCR, argued that argument that “preparing the lethal provided to an inmate if an execution fails. “[r]endering medical aid isn’t part of injection chemical and providing medical Los Angeles Times Communications the execution.” He further asserted that assistance are not part of the execution” LLC v. Kernan, No. 18 cv 02146 RS inmates have a right to privacy. “Does the and are not “inextricably intertwined,” (N.D. Cal. 2018). Observers argued that press get to ride in the ambulance to the therefore making these portions of the although Seeborg had not provided a fi nal ER?” he asked. “If you get to that point process outside the holding of California ruling in the case, his ruling to dismiss you know the execution process didn’t First Amendment Coalition. Seeborg the government’s motion seemed very succeed, and the execution process is disagreed, holding that the Ninth favorable to the media plaintiffs. what they’re able to watch.” Circuit’s ruling “supports a more open According to the San Francisco Attorney Christopher Sun, who interpretation of the right of access to Chronicle on August 17, California’s last represented the plaintiffs, countered observe executions, which can be applied execution was in January 2006, after that California’s protocols prevented the as public debate refl ects changes in which a federal judge ruled that fl aws public from observing the consequences society’s view of capital punishment.” in staff training and lethal injection of a failed lethal injection. “The public He added, “Treating the inmate’s entry procedures had created “an undue risk of has a right to witness what happens when into the execution chamber as the a botched and agonizing execution.” This something goes wrong and not rely on the defi nitive trigger of a First Amendment led to several attempts by California to state’s representation,” he said during the right of access is not consistent with revise its protocols related to executions, August 16 hearing. the reasoning of [the Ninth Circuit], and which included a 2016 ballot measure In his August 17 opinion, Seeborg fi rst ignores its concern for an informed public intended to speed up executions, noted that “[e]xecutions in the United debate.” according to the Los Angeles Times on States have historically been open to the Fourth, Seeborg noted that two district August 17. The latest version of lethal public.” He also explained that executions court rulings interpreted California First injection regulations went into effect on in California occur in a facility at San Amendment Coalition in a similar way. In March 1, 2018. Quentin State Prison, which includes First Amendment Coal. of Arizona, Inc. On April 11, 2018, Los Angeles Times a centralized “Lethal Injection Room” v. Ryan , 188 F. Supp. 3d 940, 956 (D. Ariz. Communications LLC; KQED, Inc., a surrounded by three viewing rooms for 2016), the District of Arizona found that non profi t media organization; and the witnesses to see the execution via viewing Arizona’s execution protocol “satisfi ed San Francisco Media Center, a non profi t windows with curtains. The “Infusion [California First Amendment Coalition] publishing online media (collectively Control Room,” which the public cannot by allowing witnesses to view, at times “media outlets”), brought a lawsuit against see under California’s protocols, is where only via closed circuit television, when Secretary of the California Department of staff members prepare the lethal drugs the condemned enters the execution Corrections and Rehabilitation (CDCR) and inject them into tubes connected to chamber, is strapped to the gurney, and Scott Kernan, as well as Ronald Davis, the inmate’s body. Additionally, Seeborg when intravenous lines are inserted.” the Warden of San Quentin State Prison noted that if the inmate is still alive after Seeborg noted that the court “did not (collectively “the State”). The lawsuit the three required doses are administered, extend the First Amendment right of targeted California’s latest lethal injection prison offi cials halt the execution, as well access to portions of an execution before protocols, which “bar[red] access to as “cut the public address system, close the inmate is brought into the execution [several] key portions of executions.” The the curtains on the viewing windows, chamber.” lawsuit alleged that the public and the and lead witnesses out of the viewing In Guardian News & Media LLC v. press have a First Amendment right to room” before administering or calling for Ryan, 225 F. Supp. 3d 859, 867 (D. Ariz. observe: “(1) the preparation of the lethal medical assistance. 2016), the District of Arizona similarly injection chemical; (2) the administration Second, Seeborg cited California First found that “a right of access could include of the chemicals; and (3) the provision of Amendment Coalition v. Woodford, 299 medical assistance if an execution fails.” F.3d 868, 873 (9th Cir. 2002), in which the Executions, continued on page 52 51 Defamation Cases Continue for Right-Wing Radio Host and BuzzFeed; Former Political Candidates Bring Defamation Lawsuits n summer and fall 2018, several Russian businessman Aleksej Gubarev on Cohen’s Showtime show, “Who Is prominent individuals faced as a public fi gure in a defamation America.” or fi led defamation lawsuits. case he brought regarding BuzzFeed’s Throughout 2018, right wing radio publication of the dossier. On October Defamation Suits Against Alex Jones host Alex Jones continued fi ghting 17, The New York Times asked to Progress as Online Platforms Ban Idefamation lawsuits that arose out of intervene in the case and that the court Jones’ Content his repeated claims that the Sandy Hook unseal relevant records, alleging that In fall 2018, Alex Jones, creator of shooting was faked. He fi led motions to it was impossible to report on the case the far right website “InfoWars,” which dismiss in three with widespread redactions. Meanwhile, is known for promoting conspiracy of the cases, on August 20, a D.C. judge had dismissed theories, fi led several motions to dismiss DEFAMATION citing Texas law. a defamation lawsuit against Christopher in three separate defamation lawsuits Meanwhile, several Steele, a former MI6 intelligence offi cer related to his claims that the 2012 Sandy social media and streaming websites who compiled the dossier, holding Hook shooting was a “giant hoax.” The banned Jones and his conspiracy that Steele was protected by the First motions came as more online platforms website, “InfoWars,” contending that Amendment and Washington, D.C.’s anti banned Jones’ content because it his content violated their terms and SLAPP statute. violated user agreements, as well as conditions. On October 16, former U.S. Senate terms and conditions related to hate In October 2018, litigation also candidate and Arizona sheriff Joe speech. continued in the defamation lawsuits Arpaio sued The New York Times for On April 2, 2018, Marcel Fontaine related to the “Steele Dossier,” a defamation, alleging they published sued Jones, “InfoWars,” its parent 35 page document detailing ties an op ed that harmed his ability to company Free Speech Systems LLC, between then Republican presidential run for the Senate in 2020. Finally, on and Kit Daniels, an “InfoWars” reporter, candidate Donald Trump and the Russian September 5, another former Senate for publishing a photograph of Fontaine government. On October 1, BuzzFeed candidate, Roy Moore, sued Sacha Baron that suggested he was the Sandy Hook requested that the U.S. District Court for Cohen, Showtime, and CBS over a skit Shooter. Fontaine argued that he was the Southern District of Florida classify that implied Moore was a pedophile “targeted” by “InfoWars” because he
Executions, continued from page 51 the “lethal chemical injections are the On August 17, independent California viewing where the lethal chemical mixing actual cause of death and are prepared news and culture outlet 48hills contended and administration occurs if the State in the same Infusion Control Room that although Seeborg had not made a lacked a legitimate penological objective where the chemicals are administered, fi nal ruling in the case, his decision to to conceal this from view.” Seeborg wrote by the same team of prison offi cials who dismiss the State’s motion “seem[ed] that the ruling “supports a more open administers them.” very favorable to the news media groups’ rather than static treatment of its holding Seeborg further found that the media overall arguments.” to cases involving a right of access to outlets suffi ciently alleged a right to 48hills also noted that as of August observe portions of an execution, distinct observe medical assistance “because it 2018, 744 inmates awaited execution from a right of access to documents or occurs after the inmate is brought into in California, including 721 men and 23 information about the execution.” Thus, the execution chamber.” He noted that women. The San Francisco Chronicle Seeborg concluded that “[a]t the motion witnesses can only be removed if the state reported on the same day that more than to dismiss stage, plaintiffs can satisfy had “a valid penological purpose,” but 20 condemned prisoners in California their pleading burden . . . for a First that this was not the case in the present have exhausted all appeals of their Amendment right of access to observe dispute because the defendants appeared death sentences. The Chronicle further portions of an execution” before and after to concede no such purpose regarding reported that unless Gov. Jerry Brown or the inmate is brought into the execution the preparations of the chemicals and had his successor intervenes in these cases, chamber. “only offer[ed] a potential medical privacy executions could resume by August 2019. Finally, Seeborg turned to whether interest in preventing public access to The Los Angeles Times observed that the the plaintiffs had “raised facts suffi cient an inmate’s medical information during California governor can only commute to achieve the requisite standard of execution,” which was not suffi cient to death sentences of inmates convicted of plausibility regarding rights of access” qualify as a “valid penological purpose.” multiple felonies with the approval of four before the inmate enters the Lethal Thus, Seeborg denied the State’s of the seven justices of the state Supreme Injection Room, or when medical care motion to dismiss. The full ruling is Court. is provided after the injections have available online at: https://www.aclunc. been administered. Seeborg found that org/docs/2018.09.06_Order_Denying_ SCOTT M EMMEL the plaintiffs had suffi ciently argued Defendants_Motion_to_Dismiss_ SILHA BULLETIN E DITOR “a plausible claim [that] preparing the Complaint_in_Part.pdf. As the Bulletin chemicals is inextricably intertwined with went to press, no further announcements the execution process.” He reasoned that had been made in the case. 52 was wearing a t shirt emblazoned with a anonymous source from the gutter of the free speech and an attempt to hold hammer and sickle and images of Joseph internet.. . . Publishing the article was a Defendants liable for simply expressing Stalin, Vladimir Lenin, and Karl Marx. On reckless act that unquestionably subjects their opinions regarding questioning the June 6, Jones fi led a motion to dismiss, InfoWars to a plausible cause of action government.” It added that “[t]he goal citing the Texas Citizens Participation for defamation.” Fontaine also requested of this lawsuit is to silence Defendants, Act (TCPA). Tex. Civ. Prac. & Rem. Code that the court award him reasonable as well as anyone else who refuses to § 27.003. (For more information on attorney’s fees and court costs. The accept what the mainstream media and Fontaine’s lawsuit, see Massachusetts response brief is available online at: government tell them, and prevent them Man, Sandy Hook Parents Sue Alex http://infowarslawsuit.com/wp content/ from expressing any doubt or raising Jones for Defamation in “Minnesota and uploads/2018/10/2018 07 26 Plaintiffs questions.” Federal Courts Grapple with Defamation Response to Defendants Mtn to Dismiss The plaintiffs, in a response fi led on Questions; Right Wing Radio Host Under the Texas Citizens Participation July 25, argued that they brought the Faces Several Defamation Lawsuits,” Act.pdf. lawsuit because Jones’ rhetoric led to in the Summer 2018 issue of the Silha The court issued an order, but not a woman stalking and threatening their Bulletin.) a written opinion, when deciding the family. The woman, Lucy Richards, later In the motion to dismiss, Jones motion to dismiss. Fontaine v. Jones, pleaded guilty to threatening the family argued that Fontaine’s cause of action No. D 1 GN 18 001605 (2018). According and was sentenced to prison. “For years, should be dismissed under the TCPA, to The New York Times on Aug. 30, Mr. Jones smeared this shattered family Texas’ anti SLAPP statute, which allows 2018, the court denied Jones’ motion to with his malicious statements and they parties to fi le a motion to dismiss in dismiss regarding Fontaine’s defamation nearly suffered another fatal tragedy a defamation case if the legal action claim, but granted it in regard to as a result,” the response says. “Yet Mr. revolves around their right to free Fontaine’s emotional distress claim. Jones refused to stop, and he now seeks speech, expression, association, or The judge also held that Fontaine could a license from this Court to continue right to petition. Jones contended that sue the other plaintiffs, but not Jones pedaling his dangerous lies.” Fontaine’s lawsuit sought to restrict personally. On August 30, The New York Times Daniels’ right to speak freely on a On September 14, the defendants fi led reported that the 261st Judicial District matter of public concern, and therefore a notice of accelerated appeal in the Court of Travis County, Texas had should be dismissed pursuant to the Third Court of Appeals in Austin, Texas. denied Jones’ motion on August 30 as TCPA. The motion further argued that As the Bulletin went to press, the appeal to all counts. De La Rosa v. Jones, No. Fontaine would be unable to make a remained pending. D 1 GN 18 001842 (2018). On September prima facie defamation case and alleged On April 16, 2018, parents of two 12, Jones gave notice of his intention to that the defendants were entitled to a children killed in the 2012 Sandy Hook fi le an expedited interlocutory appeal. truth defense under Texas defamation shootings fi led two separate lawsuits As the Bulletin went to press, the appeal laws. The motion also asked the judge against Jones, “InfoWars,” and Free remained pending. to award the defendants court costs, Speech Systems alleging that Jones’ The defendants fi led a similar motion attorney’s fees, and other expenses, allegations that the shooting was to dismiss the Heslin case in Travis and to sanction Fontaine. The full faked were defamatory. In one lawsuit, County under the TCPA on July 13. The motion is available online at: http:// Leonard Pozner and Veronique De La court held a hearing on the motion on infowarslawsuit.com/wp content/ Rosa claimed that Jones used a technical August 30, but did not issue a ruling uploads/2018/06/june 5 2018 defendants glitch in a CNN interview with De La within 30 days of the hearing, as required motion to dismiss.pdf. Rosa to allege that the shooting did by the TCPA. On October 2, Jones, Fontaine’s response to the motion to not happen and that the plaintiffs were contending that the court’s failure to act dismiss alleged that “InfoWars” decided “liars and frauds.” In a second lawsuit, meant the court denied the motion as to publish the photograph despite Neil Heslin argued that Jones defamed a matter of law, fi led notice of appeal. knowing that “[i]t was an obvious bad him when citing a report prepared by As the Bulletin went to press, all trial joke by an anonymous internet troll.” one of Jones’ employees that claimed it court proceedings, including a motion Fontaine further argued that “InfoWars” was impossible for Heslin to have held fi led by Heslin to hold the defendants published the photograph recklessly his dead son, despite Heslin’s claims in contempt for failing to respond with no journalistic verifi cation, and otherwise. (For more information on to discovery requests and produce that the source of the photograph, an these lawsuits, see Massachusetts Man, parties for depositions, were stayed anonymous message on 4chan, a far Sandy Hook Parents Sue Alex Jones pending the appeal. Heslin v. Jones, right discussion board, was so “patently for Defamation in “Minnesota and No. D 1 GN 18 001835 (2018). unreliable” that the court should infer Federal Courts Grapple with Defamation Pressure on Jones increased in the that “InfoWars simply did not care Questions; Right Wing Radio Host midst of the lawsuits. On August 6, The about the truth.” It also argued that Faces Several Defamation Lawsuits,” New York Times reported that Apple, the motion to dismiss was fi led solely in the Summer 2018 issue of the Silha Google, Facebook, and Spotify banned to harm Fontaine and was “intended Bulletin.) or severely restricted Jones’ content. to delay these proceedings and drive On June 26, Jones and the other According to the Times , Apple removed up the costs of litigation for Plaintiff.” defendants fi led a motion to dismiss fi ve of six “InfoWars” podcasts on the The response continued, “InfoWars under the TCPA in the Pozner and De La Apple Podcasts app, citing hate speech maliciously published an innocent Rosa case. In the motion, they argued as the reason for removal. Facebook man’s photograph as a mass murder that the “lawsuit [was] a strategic device suspect based on an unattributed used by Plaintiffs to silence Defendants’ Defamation, continued on page 54 53 Defamation, continued from page 53 between the Russian government and companies had been severely damaged then Republican presidential candidate by the false accusations and “some clear removed four of Jones’ pages, including Donald Trump. On Oct. 17, 2018, The errors” in the dossier. one with almost 1.7 million followers New York Times moved to intervene in On June 4, 2018, Southern District of for “glorifying violence” and “using the defamation case against BuzzFeed Florida Judge Ursula Ungaro ruled that dehumanizing language to describe and also requested access to the judicial BuzzFeed could claim New York’s fair people who are transgender, Muslims records in the case. Meanwhile, on report privilege as a defense. Gubarev and immigrants.” Google owned Aug. 20, 2018, a Washington, D.C. judge v. BuzzFeed , No. 1:17 cv 60426 UU (S.D. YouTube removed Jones’ channel, which dismissed a separate defamation lawsuit Fla. 2018). Ungaro held that the privilege, had more than 2.4 million subscribers, arising out of the dossier. In this case, which is normally used to shield media for violating its prohibition on hate three Russian billionaires, Mikhail outlets and journalists from defamation speech. Spotify also cited a prohibition Fridman, Petr Aven, and German Kahn, liability when they report on government on hate speech when banning one of sued Steele for defamation related to investigations using offi cial documents Jones’ podcasts. On September 6, Twitter and statements by also permanently banned Jones and “It’s clear that First Amendment doctrine public offi cials, “InfoWars,” citing tweets and videos that also extends to violated the company’s abusive behavior needs to evolve, not to undo freedom include classifi ed policy, according to a September 6 of speech, but to ensure the values intelligence statement. of public debate and of democratic briefi ngs. (For Others have protested against more information Jones, including his former wife, Kelly self-government continue in a digital on the previous Jones. During a hearing in one of the environment.” ruling and the defamation cases against Jones, Kelly background of the Jones joined a protest outside the — Neil Richards, case, see BuzzFeed Travis County courthouse, according to University of Washington Law School professor Allowed Fair an August 30 Huffi ngton Post article. Report Privilege “Texans do care about justice, we care in Trump Dossier about bullies,” she said during the claims in the dossier alleging their ties to Defamation Case in “Minnesota and protest. “We’re a strong state and we the Russian government. Federal Courts Grapple with Defamation don’t put up with people bullying kids or During the 2016 U.S. presidential Questions; Right Wing Radio Host parents of murdered schoolkids. We’re campaign, Steele compiled the Faces Several Defamation Lawsuits” not gonna tolerate that, we’re gonna dossier as part of opposition research in the Summer 2018 issue of the Silha stand out here and protest peacefully.” against Trump. The dossier contained Bulletin.) Some legal experts believe that the allegations of cooperation between On October 1, BuzzFeed requested outcome of these cases will help shape Russia and the Trump campaign during that the Southern District of Florida fi nd how courts handle the First Amendment the course of the general presidential that Gubarev was a public fi gure, which in the Internet age, regardless of how election, among other claims. On Jan. would require that he show “actual they are resolved. Neil Richards, a First 10, 2017, BuzzFeed published the malice,” the standard created in New Amendment expert at the University of 35 page dossier in its entirety. Although York Times v. Sullivan , 376 U.S. 254 Washington Law School, told Wired on it fl agged the allegations contained (1964) requiring proof that defendants August 6 that courts should revisit some within the documents as “unverifi ed, knowingly made false statements or important precedents in order to adapt and potentially unverifi able,” BuzzFeed made statements with reckless disregard to new technologies. “It’s clear that First explained that it published the document for their truth or falsity. Amendment doctrine needs to evolve, in full “so that Americans can make In an October 9 brief in response not to undo freedom of speech, but to up their own minds about allegations to Gubarev’s October 1 motion for ensure the values of public debate and of involving the president elect that have summary judgement on BuzzFeed’s democratic self government continue in circulated at the highest levels of the US use of the public fi gure defense, the a digital environment,” he said. government.” The dossier and BuzzFeed news outlet argued that Gubarev and article are available online at: https:// his company were “major players in the Disputes Mount in “Steele Dossier” www.buzzfeed.com/kenbensinger/these world of technology and web hosting, Defamation Case, D.C. Judge reports allege trump has deep ties to and the major player in the Russian Dismisses Trump Dossier Defamation russia?utm_term=.darpRrV7#.vdxDJdZv. internet world” (emphasis in original), Case Against Christopher Steele Part of the dossier alleged that and, therefore, Gubarev should be On October 9, BuzzFeed requested Gubarev was a “signifi cant player” in an considered a limited purpose public that the U.S. District Court for the operation in which his companies, XBT fi gure, as opposed to a “household name Southern District of Florida classify Holdings S.A. and Webzilla, as well as like Oprah or Facebook.” BuzzFeed Russian businessman Aleksej Gubarev their affi liates, “had been using botnets cited Gubarev’s extensive efforts to as a public fi gure in a defamation and porn traffi c to transmit viruses, plant gain publicity for his company in the case he brought regarding BuzzFeed’s bugs, steal data and conduct ‘altering year before the Dossier was published. publication of the “Steele Dossier” operations’ against the Democratic Party “Plaintiffs spent more than a year before (dossier), a 35 page document compiled leadership.” In February 2017, Gubarev the Dossier was published aggressively by former MI6 intelligence offi cer fi led a defamation lawsuit against seeking — and meaningfully receiving — Christopher Steele detailing ties BuzzFeed, contending that he and his worldwide publicity to position Gubarev 54 and XPT as “experts” and “thought Jonathan Manes, director of the Civil In the August 20 court order, Epstein leaders” on cybersecurity and “Russian Liberties and Transparency Clinic at sided with Steele. He fi rst wrote that tech,” the brief read. As the Bulletin the University at Buffalo School of Law, the D.C. anti SLAPP law is intended to went to press, Ungaro had not ruled told McClatchy in a November 21 article prevent lawsuits designed to quell public whether Gubarev was a public fi gure. that it is important for the public to participations by “extending substantive Meanwhile, on October 17, The New have access to court documents. “Court rights to defendants,” that allow them York Times fi led a motion to intervene proceedings are public proceedings, to fi le special motions to dismiss in in the case in order to seek to unseal and the public is entitled to see how the early stages of a lawsuit. In the judicial records relating to the parties’ the cases are progressing and why they special motion, the defendant must fi rst previous summary judgement motions. turn out the way they turn out,” he said. make a prima facie showing that the The Times argued that the case was “If we can’t read the papers the judge is legal action resulted from “an act in undeniably regarding a matter of public reading, we don’t know what is going furtherance of the right of advocacy on concern, and that the “widespread on.” issues of public interest.” Epstein noted redaction of dispositive motions” Meanwhile, on August 20, D.C. that the law requires that the plaintiffs prevents the public from effectively Superior Court Judge Anthony Epstein prove that their claim is likely to succeed monitoring it. “Redactions block out, dismissed an April 16 lawsuit brought by on its merits, or the case is dismissed. in full or part, such critical sections of Second, Epstein the parties’ briefs as those dealing with “Court proceedings are public held that Steele whether the plaintiffs are public fi gures could claim First and whether the fair report privilege, proceedings, and the public is entitled Amendment applicable to governmental documents, to see how the cases are progressing protections because applies to the document,” the brief and why they turn out the way they turn D.C.’s anti SLAPP stated. The Times also alleged that these law is presumed to documents are presumptively public, out.. . . If we can’t read the papers the cover only speech and that when “discovery material is judge is reading, we don’t know what is protected by the fi led in connection with pretrial motions going on.” First Amendment, that require judicial resolution of the and the law merits, the right of access attaches.” — Jonathan Manes, does not limit The Times noted that it would use University at Buffalo School of Law its applicability the information in order to report on Civil Liberties and Transparency Clinic director to U.S. citizens. the case, arguing that “[o]btaining court He continued records for news purposes is clearly by noting that one which is legitimate and in fact Fridman, Aven, and Kahn against Steele “advocacy on issues of public interest promotes public understanding of these in which they argued that the former has the capacity to inform public debate, proceedings” (emphasis in original). MI6 agent defamed them in the dossier and thereby furthers the purposes Additionally, the motion contended that by detailing their ties with the Russian of the First Amendment, regardless there was no interest in privacy that government and implying that they of the citizenship or residency of the would be served by keeping the records tried to infl uence the 2016 United States speaker.” Epstein also pointed to Steele’s sealed or redacted, as the dossier is presidential election. Khan v. Orbis extensive contact with the United States, already available to the public, and Business Intelligence Ltd., No. 2018 CA and the fact that he was hired by Hillary that most of the sealing relates to the 002667 B (2018). Clinton’s campaign, to determine that ongoing debate about the plaintiff’s Steele countered that the lawsuit Steele’s speech was protected by the status as a public fi gure. “Whether should be dismissed because it was First Amendment. [Gubarev is a] public fi gure focuses frivolous and an attempt to silence Third, Epstein held that Steele on Plaintiff’s involvement in a public him, citing the First Amendment and made an appropriate showing that controversy — the very antithesis of a Washington, D.C.’s Anti Strategic the Plaintiff’s claims arose from “an matter that warrants privacy,” the brief Lawsuits Against Public Participation act in furtherance of the right of read. The Times also noted that there is (anti SLAPP) Act. D.C. Code §§ 16 5501 advocacy on issues of public interest.” no evidence that disclosure would not 5505. Anti SLAPP laws are meant to He found that Steele advocated by impede law enforcement, and that the provide a remedy for defendants against providing the dossier to the media with existing and continuing coverage would meritless claims brought by plaintiffs the understanding that it would be not lead to an unfair trial. As the Bulletin involving publications regarding matters published, even though the information went to press, Ungaro had not ruled on of public concern or the defendant’s was “raw intelligence,” and not the motion. right to free speech, right to petition necessarily Steele’s personal opinions. BuzzFeed’s lawyer, Roy Black of the government, or right of association. Epstein wrote, “Protection under the Black Srebnick Kornspan & Stumpf The D.C. anti SLAPP statute imposes a Anti SLAPP Act is at least as broad as PA, told Law360 on October 17 that heightened pleading standard for claims protection under the First Amendment, the news outlet had not yet taken a related to “act[s] in furtherance of the so the Act applies to statements that position on the Times ’ motion. “While right of advocacy on issues of public consist of ‘raw intelligence.’” we are in favor of full disclosure of court interest” by requiring plaintiffs to show Epstein also found that Steele made proceedings, there are witnesses who that their claims are “likely to succeed a prima facie showing that the dossier have asked for privacy which we have to on the merits.” respect,” he said. Defamation, continued on page 56 55 Defamation, continued from page 55 representing the plaintiffs, said in an statement released after the pardon, August 21 statement that they “strongly” President Trump voiced his support for involved an issue of public interest. He disagreed with the court and stated Arpaio. “Throughout his time as sheriff, wrote, “The Steele Dossier as a whole that they would appeal the ruling. “We Arpaio continued his life’s work of plainly concerns an ‘issue of public respectfully disagree with Judge Epstein protecting the public from the scourges interest’ within the meaning of [the on a number of points and are confi dent of crime and illegal immigration,” the anti SLAPP law] because it relates to that the appellate court will reinstate the statement said. “Sheriff Joe Arpaio is possible Russian interference with the plaintiffs’ claims,” he said. now 85 years old, and after more than 2016 presidential election” (emphasis 50 years of admirable service, he is [a] in original). He also found the specifi c Former Arizona Sheriff Brings worthy candidate for a Presidential section at issue in this lawsuit of public $147.5 Million Defamation Lawsuit pardon.” interest because it involved Russian Against The New York Times The Aug. 29, 2018 New York Times foreign policy towards the United States. On Oct. 16, 2018, former Arizona editorial, titled “Well, at Least Sheriff Joe Therefore, Epstein concluded that Steele Sheriff Joe Arpaio fi led a $147.5 million Isn’t Going to Congress,” accused Arpaio made a valid claim under the anti SLAPP defamation lawsuit against The New of “terrorizing immigrants” and “racial law. York Times and Michelle Cottle, a Times profi ling on a mass scale,” and referred Fourth, Epstein held that the plaintiffs editorial writer, in the U.S. District Court to him as “a sadist masquerading as a did not show that their case would for the District of Columbia. Arpaio v. public servant” and a “disgrace to law be likely to succeed on the merits. He Cottle, No: 1:18 cv 02387 (D.D.C. 2018). enforcement.” The story asserted that reasoned that they did not show actual Arpaio alleged that an Aug. 29, 2018 Arpaio “brought back chain gangs” in malice, and that they did not offer any editorial article that referred to him Arizona detention centers, withheld evidence that Steele knew or recklessly as a “truly sadistic man” harmed his medical care from detainees, and failed disregarded information relating to reputation and his ability to run for the to investigate sex crimes involving the dossier’s falsity. Epstein further U.S. Senate in 2020. Arpaio’s attorney children. The article also detailed found that the plaintiffs did not offer said the lawsuit was part of his “Leftist Arpaio’s relationship with President evidence to prove that the statements Media Strike Force,” designed to “hold Trump, Arpaio’s embrace of the birther were false. He concluded that “because the dishonest and unhinged ‘fake news’ movement that claimed former President Plaintiffs have not offered evidence left accountable.” Others suggested Barack Obama’s birth certifi cate was supporting a clear and convincing that the lawsuit was a stunt designed to a forgery, and condemned the pardon inference that Defendants made any garner publicity for Arpaio. President Trump granted Arpaio after he defamatory statement in [the dossier] According to an Aug. 23, 2017 story was found guilty of criminal contempt with knowledge that it was false or with by The Washington Post, Arpaio was of court in July 2017. The full editorial is reckless disregard of its falsity, they have elected sheriff in 1993 and soon became available online at https://www.nytimes. not offered evidence that their claims are known for his unusual practices, com/2018/08/29/opinion/sheriff joe likely to succeed on the merits.” including requiring inmates to wear pink arpaio congress.html. Finally, Epstein clarifi ed that the underwear and setting up a “Tent City” In the complaint, Arpaio alleged court did not determine the accuracy jail that was kept open for more than that the article contained several false, of the information contained in the 20 years, despite multiple lawsuits from defamatory factual assertions that were dossier, or whether Steele defamed former inmates. The story noted that designed to harm his political career, the plaintiffs. Instead, Epstein wrote when the recession hit in 2008, Arpaio prevent him from securing political that “[t]he Court concludes only that was faced with political quarreling and funding, and damage his reputation in the Anti SLAPP Act requires dismissal legal disputes surrounding his budget the law enforcement community. “These of this case because Defendants have for combatting illegal immigration. Also false factual assertions are carefully made a prima facia case that the Act in 2008, President George W. Bush’s and maliciously calculated to damage applies to their provision of this portion administration began investigating the and injure plaintiff Arpaio both in the of the Steele Dossier to the media, and sheriff’s offi ce for possible civil rights law enforcement community — which Plaintiffs have not submitted evidence violations, according to the Post. The is centered in this judicial district — as that the Defendants knew any of this article stated that the investigation well as with Republican establishment information was false or acted with continued until Arpaio’s agency lost donors, which is also centered in this reckless disregard of its falsity.” The full its immigration enforcement authority judicial district, in order to prevent him order is available online at: https://www. in 2011, when the U.S. Department from a successfully run [sic] for U.S. documentcloud.org/documents/4779088 of Justice (DOJ) concluded that the Senate in 2020 or another public offi ce Khan v Orbis Order 082018.html. sheriff’s offi ce participated in systematic as a Republican,” the complaint read. In an August 21 statement, Steele’s racial profi ling. Arpaio argued that although the editorial attorney, Christy Hull Eikhoff, said that Arpaio was convicted of criminal was “strategically titled as an opinion they were “thrilled” with the court’s contempt of court in 2017 after he piece,” its mixture of “false or misleading decision to dismiss the case. “We will refused a 2013 order by U.S. District facts or false and misleading mixed continue to defend against baseless Judge Murray Snow that required the opinion and fact” constituted outright attacks on Chris and his company, agency to stop detaining people based on lies. Orbis, and hope that the result of this suspicions of their immigration status, Arpaio further claimed that the case will be a lesson to those who seek according to the Post. President Trump article harmed his “distinguished 55 year to intimidate Chris and his company,” pardoned Arpaio on Aug. 25, 2017, as law enforcement and political career” she said. Alan Lewis, an attorney reported by CNN two days later. In a and damaged his reputation with the 56 Republican establishment. He alleged pedophile. Legal experts contended that, of committing a serious crime and, that the article damaged his ability to even if the allegations were false, Moore therefore, damages were presumed as a run for elected offi ce in 2020 and harmed would have a diffi cult time winning the matter of law. him fi nancially due to a decreased ability case. In a second cause of action for to secure political funding. Arpaio Moore, the former chief justice intentional infl iction of emotional claimed defamation per se, tortious of the Alabama Supreme Court, had distress, Moore asserted that Cohen’s interference with prospective business previously been accused of pursuing actions were “extreme and outrageous” relations, and false light. He sought several teenage girls while he was in his and not based on any substantiated $147,500,000 in actual, compensatory, 30s. On Nov. 9, 2017, The Washington factual basis. “As a direct and proximate and punitive damages, as well as Post reported that Roy Moore had result of Defendants and their agents’ attorney’s fees and court costs. The full approached several teenage girls in the extreme and outrageous conduct set complaint is available online at: https:// 1970s, when Moore was a 32 year old forth above, Judge Moore has been the www.politico.com/f/?id=00000166 7fc5 assistant district attorney, and attempted subject of widespread ridicule and has d3f0 a1f7 ffc50e8b0002. As the Bulletin to initiate relationships with them. The suffered severe loss of reputation, which went to press, the court had not ruled in Post reported that Moore took three has in turn also caused him, Mrs. Moore, the case. underage girls on dates, and repeatedly and his entire family severe emotional Larry Klayman, Arpaio’s attorney asked out another. The youngest was distress and fi nancial damage, especially and founder of conservative group 14 year old Leigh Corfman, the only girl given his status as a prominent Freedom Watch, said in an October 17 who reportedly had sexual contact with conservative and a God fearing person of statement that the lawsuit was fi led as Moore. Moore denied the allegations faith,” the complaint stated. part of Freedom Watch’s “Leftist Media and his campaign released a November 9 In the fi nal cause of action, Moore Strike Force.” “The NYT and its hate statement calling the Post story “the very alleged that Cohen’s misrepresentation fi lled reporter, Michelle Cottle, will be defi nition of fake news and intentional of the television show and award held accountable for their libelous acts, defamation.” constituted fraud. “Defendant Cohen, not just to bring about justice for my Moore asserted in his while in disguise, further made false client, but all those who on a daily basis September 5 complaint, in which his and fraudulent representations that are demeaned, trashed and harmed by wife, Kayla Moore, was included as he was ‘Erran Morad’ in order to trick this venomous leftist publication and a plaintiff, that Cohen “falsely and Judge Moore into speaking with and to its staff” Klayman said. “By demanding fraudulently induces unsuspecting be interviewed by him,” the complaint and getting a jury verdict for large victims, such as Judge Moore to be read. It also contended that, because the compensatory and punitive damages, we interviewed under dishonest, unethical, defendants failed to take remedial action hope to bring this ‘failing newspaper’ to illegal and false pretenses.” The after being notifi ed that the release its knees and end its mission to destroy complaint claimed that the interview Moore signed before appearing on the all who it disagrees with, most notably “falsely painted, portrayed, mocked and television show was obtained through conservatives, including the current with malice defamed Judge Moore as a fraud, all the defendants may be held president of the United States, Donald J. sex offender, which he is not.” Moore jointly and severally liable. Trump.” further alleged that Cohen does this in Moore asked the court for $95 million In an October 16 email to Politico, order to “severely humiliate” the guests in damages, as well as attorney’s fees Times spokesperson Eileen Murphy said so that he may promote and profi t from and costs. As the Bulletin went to press, the news organization does not plan on his television show. The complaint the defendants had not fi led a response settling. “We intend to vigorously defend also stated that Moore believed he was to the complaint, but had moved to against the lawsuit,” she wrote. appearing on a different, nonexistent transfer the case to the Southern District Some believe that Arpaio’s lawsuit is show, and that he thought he would of New York. not about the $147.5 million he is seeking be receiving an award for his “strong On the show “Who Is America?” in damages. EJ Montini, a columnist at support of Israel in commemoration of Cohen is well known for duping AZCentral, wrote on October 17, “Money its 70th anniversary as a nation state.” celebrities and public fi gures, and isn’t what he wants.. . . What Arpaio Moore said that he would not have assuming aliases in order to trick them wanted, and has always wanted, and has agreed to appear on Cohen’s show if into appearing on the show. Previous always received, is attention.” he knew he would appear on “Who Is guests on the show include President America?” instead of receiving an award Donald Trump, O.J. Simpson, Bernie Roy Moore Files Defamation Lawsuit on the fi ctional show. Sanders, Buzz Aldrin, and Paula Abdul, Against Cohen, Showtime, and CBS In the fi rst cause of action for among others. Previous guests have for TV Stunt defamation, the complaint alleged that sued Cohen, but he has prevailed in On Sept. 5, 2018, former U.S. Senate the depiction suggesting that Moore was nearly every case, largely thanks to the candidate Roy Moore fi led a lawsuit in a sex offender harmed his reputation comprehensive release guests must the U.S. District Court for the District of and damaged him fi nancially “by calling, sign before appearing on the show Columbia against Sacha Baron Cohen, representing and publishing within this that releases Cohen from liability for Showtime, and CBS for defamation, district, the nation and the world, with defamation, according to The New York intentional infl iction of emotional malice, that Judge Moore [is] a pedophile Times on August 19. distress, and fraud stemming from a and a sex offender.” Moore claimed that segment on Cohen’s prank show “Who Is the statements constituted defamation KIRSTEN N ORDSTROM America?” that insinuated Moore was a per se because they accused Moore SILHA R ESEARCH A SSISTANT
57 Ninth Circuit Declines a Second Look at the Monkey Selfi e Case n Aug. 31, 2018, the U.S. copyright infringement under the PETA’s lack of next friend status should Court of Appeals for the Copyright Act. have been the end of the lawsuit. Ninth Circuit declined Judge Carlos Bea wrote the majority The Ninth Circuit’s full ruling is to rehear en banc what opinion in which he held that PETA did available online at: https://www. became known as the not have next friend standing to bring documentcloud.org/documents/4444209 O“Monkey Selfi e” case, which arose the lawsuit, an argument normally used Naruto Monkey PETA v Slater CA9 after an Indonesian monkey named when a party seeks to appear in court Opinion 04 23 18.html. (For more Naruto took a selfi e of himself using on behalf of an individual who is not information on the background of photographer competent to do so, such a minor or the case and the Ninth Circuit’s April David John Slater’s someone with cognitive disabilities. ruling, see “No More Monkey Business: COPYRIGHT camera in 2011. Bea held that Naruto did have Settlement Ends ‘Monkey Selfi e’ Naruto v. Slater, Article III standing to bring the case Copyright Lawsuit” in the Fall 2017 No. 3:15 cv 04324 in federal court because he was, issue of the Silha Bulletin and “U.S. WHO (9th Cir. 2018). People for the according to the complaint, the author Court of Appeals Calls PETA Bananas Ethical Treatment of Animals (PETA) and owner of the photographs he in Monkey Selfi e Case” in the Summer argued that Naruto’s rights under the had taken using Slater’s camera, and 2018 issue.) Copyright Act, 17 U.S.C. §§ 101 et seq., had perhaps suffered “concrete or On May 25, 2018, The Recorder were violated when Slater published particularized harms,” as required by and Law360 reported that at least the photographs. The Ninth Circuit the U.S. Supreme Court in Spokeo, Inc. one member of the three judge panel previously ruled on April 23, 2018 that v. Robins , 136 S.Ct. 1540 (2016). (For that decided the case had sua sponte Naruto had standing under Article III of more information on Spokeo, Inc. v. requested that the court reconsider the the U.S. Constitution to bring a case to Robins, see “Ninth Circuit Addresses decision en banc. The judge(s) were not federal court, but did not have statutory Spokeo after Supreme Court Remands identifi ed. standing under the Copyright Act. Case; Circuit Court Splits on Article On August 31, the Ninth Circuit Naruto v. Slater, 888 F.3d 418 (9th Cir. III Standing Bar Following Spokeo in denied rehearing the case en banc, 2018). the Summer 2017 issue of the Silha writing that “[a] vote was taken, The case arose in 2011 when the Bulletin, “Supreme Court Issues Long and the matter failed to receive the 6 year old crested macaque used Awaited Spokeo Ruling” in the Summer majority of the votes of the non recused Slater’s unattended camera to take 2016 issue, and “U.S. Supreme Court active judges in favor of en banc several pictures, including of himself. Accepts Review of Robins v. Spokeo, consideration.” The one page decision is Slater later published photographs Inc.” in the Summer 2015 issue.) available online at: https://www.techdirt. taken by Naruto in his book, “Wildlife However, Bea held that Naruto did com/articles/20180831/18170340560/ Personalities,” which was published not have statutory standing under the ninth circuit stops monkeying around by Wildlife Personalities, Ltd. PETA Copyright Act, fi nding that it “does not denies en banc review monkey selfi e summarily fi led a lawsuit on behalf expressly authorize animals to follow case.shtml. of Naruto against Slater, alleging copyright infringement suits under In a statement following the order, that publishing the photographs had the statute.” Thus, the Ninth Circuit PETA spokesperson David Perle said, infringed on the macaque’s rights under concluded that if Naruto had a valid “PETA’s groundbreaking ‘monkey selfi e’ the Copyright Act. federal claim, he would have Article case sparked a massive international Judge William Orrick of the U.S. III standing to sue (emphasis added). discussion about the need to extend District Court for the Northern District However, because Naruto did not have fundamental rights to animals for their of California wrote a tentative opinion in standing under the Copyright Act, he own sake, not in relation to how they January 2016 in which he held that the did not have a valid federal claim. can be exploited by humans. Naruto Copyright Act did not apply to animals. In an opinion concurring in the macaque should be entitled to Naruto v. Slater, 15 cv 04324 WHO part, Judge N. Randy Smith agreed the copyright of the photos that he (N.D. Cal. 2016). The parties reached a “that this case must be dismissed” undeniably took, just like any other settlement in September 2017 in which because “[f]ederal courts do not photographer.” Slater agreed to donate 25 percent of have jurisdiction to hear this case at As the Bulletin went to press, PETA future revenue from the photograph to all.” However, he disagreed with the had not announced whether it would fi le charitable organizations that protect majority’s conclusion that the lack a petition for certiorari to the Supreme crested macaques, like Naruto. of next friend standing in the case Court. Despite the settlement, on April “does not destroy [Naruto’s] standing 23, 2018, the Ninth Circuit affi rmed to sue” and that Article III standing is SCOTT M EMMEL Orrick’s ruling that Naruto had not dependent on PETA’s relationship SILHA BULLETIN E DITOR Article III standing to bring a case with Naruto. Smith contended that this based on economic harms as a result conclusion was problematic because it of alleged copyright infringement, but allowed the court to reach the merits lacked statutory standing to claim of the Copyright Act question, whereas
58 Fourth Circuit Allows Lawsuit Targeting North Carolina Ag-Gag Law to Continue; District Court Rules Wyoming Law Unconstitutional n summer and fall 2018, two which criminalizes both lying to gain nonpublic areas of another’s premises federal courts ruled on North access to an agricultural operation and and engages in an act that exceeds the Carolina’s and Wyoming’s “ag gag” fi lming once inside, violated the First person’s authority to enter those areas laws, which generally prohibited Amendment rights of the People for the is liable to the owner or operator of the individuals or organizations from Ethical Treatment of Animals (PETA), premises for any damages sustained.” Igaining access to areas restricted to the the Animal Legal Defense Fund (ALDF), “Non public” areas are defi ned as “those general public, among other provisions. and Amy Meyer, the fi rst individual areas not accessible to or not intended On June 5, the U.S. Court of Appeals for charged under the law. Animal Legal to be accessed by the general public.” the Fourth Circuit Defense Fund v. Herbert, 263 F.Supp.3d The statute provides several scenarios allowed a lawsuit 1193 (D. Utah 2017). Finally, on Jan. 4, where this may occur, including an AG-GAG LAWS brought by several 2018, the Ninth Circuit ruled that two individual “[k]nowingly or intentionally animal rights portions of Idaho’s Interference with placing on the employer’s premises groups against Agricultural Production law, Idaho Code an unattended camera or electronic North Carolina’s ag gag law to continue, § 18 7042, violated the First Amendment. surveillance device and using that device fi nding that the organizations had Animal Legal Defense Fund v. Wasden, to record images or data.” The Act alleged a plausible “injury in fact,” 878 F.3d 1184 (9th Cir. 2018). provides for equitable relief, as well as namely that they could not conduct (For more information on the confl ict the recovery of compensatory damages, undercover investigations of public and between journalism and ag gag laws, costs and attorneys’ fees, and exemplary private facilities in North Carolina for as well as the federal court rulings, see damages in the amount of $5,000 for alleged animal cruelty. On October 29, “Minneapolis Legislature Introduces an each day that the person has acted in U.S. District Court for the District of ‘Ag Gag’ Law; Federal Appeals Courts violation of the Act. Wyoming Judge Scott W. Skavdahl ruled Strike Down Two States’ Laws” in the Shortly after the law was passed on remand from the Tenth Circuit that Winter/Spring 2018 issue of the Silha in 2016, PETA and the ALDF, among Wyoming’s two “Data Trespass laws,” Bulletin, Journalists Face Evolving, other animal rights organizations, which were modeled after other states’ Uncertain Legal Landscape, in “‘Drone fi led a lawsuit against North Carolina ag gag laws, were unconstitutional, Journalism’ Presents Possibilities But Attorney General Joshua Stein and fi nding that they specifi cally punished Faces Legal Obstacles” in the Fall 2014 University of North Carolina, Chapel individuals for engaging in protected issue, and “States Consider Banning Hill (UNC) Chancellor Carol L. Folt, speech. Undercover Recording at Agricultural alleging that North Carolina’s ag gag Ag gag laws take different forms in Operations” in the Summer 2011 issue.) law “interfere[d] with their plans to different states, but generally criminalize conduct undercover investigations of or hold civilly liable individuals “who Federal Appellate Court Allows government facilities in North Carolina expose patterns of animal abuse or Lawsuit to Continue Against North for the purpose of gathering evidence food safety violations on factory farms,” Carolina Ag-Gag Law of unethical and illegal animal practices according to The Humane Society of On June 5, 2018, the Associated and to disseminate this information to the United States. These laws often Press (AP) reported that the U.S. Court the public, in violation of the First and prohibit the recording of undercover of Appeals for the Fourth Circuit had Fourteenth Amendments.” The plaintiffs videos of agricultural operations, raising reversed a federal district court’s further alleged that they “fear[ed] First Amendment concerns from animal dismissal of a lawsuit brought by several liability under the [North Carolina rights and food activist groups, as well animal rights groups against North Property Protection] Act” if they as media organizations, who argue Carolina’s “ag gag” law, which prohibits continued such investigations. undercover investigations should be individuals from gaining access to areas On May 2, 2017, Judge Thomas D. allowed in order to expose unsafe or otherwise not accessible to the general Schroeder of the U.S. District Court for illegal practices or conditions. public, among other provisions. People the Middle District of North Carolina Similarly, ag gag laws can also take for the Ethical Treatment of Animals v. ruled against the organizations. People the form of agriculture disparagement Stein, 737 Fed.Appx. 122 (4th Cir. 2018). for the Ethical Treatment of Animals laws, which establish a cause of action The court held that the organizations v. Stein , 259 F.Supp.3d 369 (M.D.N.C. for damages arising from disparaging had alleged a plausible “injury in fact,” 2017). He found that they could not show statements or dissemination of false namely that they could not conduct an “injury in fact” and, thus, did not have information about the safety of food undercover investigations of public and standing to bring the case. Schroeder products. private facilities in North Carolina for wrote that the lawsuit “contain[ed] not Previously, in 2017 and 2018, two alleged animal cruelty, causing a “chilling a single allegation” that the defendants, states’ ag gag laws were struck down effect” and “self censorship.” which included the state and the by federal courts. On July 7, 2017, U.S. The North Carolina Property Protection University of North Carolina, “had ever District Court for the District of Utah Act, N.C. Gen. Stat. § 99A 2 (2016), sued or threatened to sue PETA or [the] Judge Robert Shelby ruled that Utah’s provides that “[a]ny person who law, Utah Code § 76 6 112 (2012), intentionally gains access to the Ag-Gag Laws, continued on page 60 59 Ag-Gag Laws, continued from page 59 showing that [the challenged statute] had (D. Wyo. 2018). He wrote that the laws an objectively reasonable chilling effect’ were not “content neutral” and could not ALDF for investigatory conduct.” PETA, on the exercise of their rights” (emphasis survive strict scrutiny because “[t]here the ALDF, and other plaintiffs summarily in original). One such cognizable injury [was] simply no plausible reason for appealed the case to the Fourth Circuit, would be “self censorship,” which the specifi c curtailment of speech in which held oral arguments in January occurs “when a claimant is chilled from the statutes beyond a clear attempt 2018. exercising her right to free expression.” to punish individuals for engaging in On June 5, 2018, the Fourth Circuit Such claims require a “credible threat of protected speech that at least some unanimously overturned Schroeder’s enforcement against the plaintiff,” such fi nd unpleasant.” Several observers ruling and allowed the case to proceed. as under the North Carolina ag gag law. praised the ruling as a victory for the In an unpublished per curiam opinion, The Fourth Circuit held that the First Amendment and for undercover the court fi rst stated that PETA and plaintiffs had suffi ciently alleged an investigations. ALDF has “a long history of conducting injury in fact for purposes of their First In 2015, Wyoming enacted a pair of undercover investigations, including Amendment challenge. The court fi rst statutes prohibiting individuals from in North Carolina, to accomplish their reasoned that the plaintiffs had plausibly entering “open land for the purpose of missions.” The court explained that alleged that they wished to continue collecting [or recording] resource data” the organizations recruit individuals their undercover investigations of public without permission from the owner and to secure employment at companies and private facilities and were “fully with the intention of submitting the data that they have reason to believe are prepared to go forward but for their fear to a government agency. The laws were engaged in acts of animal cruelty. Those of liability under the [North Carolina largely identical except that one imposed individuals then conduct undercover Property Protection] Act.” criminal penalties, Wyo. Stat. §§ 6 3 414 investigations, including collecting Second, the court reasoned that the (2015), while the other imposes civil incriminating information. According plaintiffs had “alleged a reasonable and liability, Wyo. Stat. §§ 40 27 101 (2015). to the court, both organizations have well founded fear that the Act will be The term “collect” was defi ned as taking “had success with these investigative enforced against them if they carry out a “sample of material” or a “photograph,” techniques,” including an investigation their plans” (emphasis in original). The or “otherwise preserv[ing] information by PETA that revealed illegal and court determined that the ag gag law in any form” that is “submitted or unethical abuse of animals at UNC from would prohibit the plaintiffs’ planned intended to be submitted to any agency 2001 to 2003. activities and potentially subject them to of the state or federal government.” Next, the court considered whether “severe exemplary damages.” The result Violations of the criminal statute carried the organizations had adequately alleged was that the plaintiffs were forced to a maximum prison term of one year and an “injury in fact,” which plaintiffs must “self censor” themselves, constituting a a $1,000 fi ne for fi rst time offenders. demonstrate in order to have standing “chilling effect.” Repeat offenders faced a mandatory under Article III of the U.S. Constitution Finally, the court wrote that it could minimum sentence of 10 days in prison, to bring a federal lawsuit. not conclude that the alleged chilling a maximum of one year, and a $5,000 Citing the U.S. Supreme Court’s effect was “objectively unreasonable” or fi ne. The civil statute imposed liability 2016 opinion in Spokeo, Inc. v. Robins, that the plaintiffs’ claims of injury were for proximate damages and “litigation the Fourth Circuit stated that it must “too speculative” to satisfy the First costs,” including attorney’s fees. determine whether the organizations Amendment standing framework. After the passage of the two laws, had suffi ciently alleged that they have Thus, the court held that the Western Watersheds Project, an “suffered ‘an invasion of a legally organizations had “suffi ciently alleged, environmental watchdog organization; protected interest’ that is ‘concrete and at least at this stage of the litigation, an the National Press Photographers particularized’ and ‘actual or imminent, injury in fact suffi cient to meet the fi rst Association (NPPA); and the Natural not conjectural or hypothetical.’” prong of the First Amendment standing Resources Defense Council (NRDC) 136 S. Ct. 1540, 1548 (2016). (For framework.” The case was remanded to fi led a federal lawsuit challenging the more information on Spokeo, Inc. v. the district court for further proceedings. statutes, arguing that they violated the Robins, see “Ninth Circuit Addresses The full per curiam opinion is available First and Fourteenth Amendments, Spokeo after Supreme Court Remands online at: http://www.ca4.uscourts.gov/ and were preempted by federal law. Case; Circuit Court Splits on Article III opinions/171669.U.pdf. The defendants of the lawsuit included Standing Bar Following Spokeo” in the As the Bulletin went to press, no Peter Michael, the attorney general of Summer 2017 issue of the Silha Bulletin, further action had been taken in the Wyoming; Todd Parfi tt, the director “Supreme Court Issues Long Awaited case. of the Wyoming Department of Spokeo Ruling” in the Summer 2016 Environmental Quality; Patrick Lebrun, issue, and “U.S. Supreme Court Accepts Federal District Court Strikes Down County Attorney of Fremont County; Review of Robins v. Spokeo, Inc.” in the Wyoming Ag-Gag Law Joshua Smith, County Attorney of Summer 2015 issue.) On Oct. 29, 2018, Judge Scott W. Lincoln County; and Clay Kainer, County The Fourth Circuit also noted that Skavdahl of the U.S. District Court and Prosecuting Attorney of Sublette in First Amendment cases, “standing for the District of Wyoming held that County. requirements are somewhat relaxed.” Wyoming’s two “Data Trespass laws,” On July 6, 2016, Judge Skavdahl According to the court, under the “First which were modeled after ag gag laws issued a written order, which held the Amendment standing framework,” in other states, were unconstitutional plaintiffs “(1) had standing to challenge plaintiffs must “‘suffi ciently satisf[y] on their face. Western Watersheds the civil statute; (2) stated a plausible the . . . injury in fact requirement by Project v. Michael, No. 15 CV 169 SWS First Amendment Free Speech and 60 Petition claim; (3) stated a plausible plausible claim that they presently have Following the ruling, Jonathan Ratner, Equal Protection claim; (4) failed to no intention to carry out their desired the director of Western Watersheds state a Supremacy Clause or preemption speech activities because of a credible Project in Wyoming, praised Skavdahl’s claim; and (5) failed to state a claim threat that the statutes will be enforced.” decision. “The ‘data trespass’ statutes against Defendant Governor Matthew Second, Skavdahl concluded that were a blatant attempt by the Wyoming Mead.” although the plaintiffs alleged an legislature to block data collection on Wyoming summarily amended the “as applied” challenge, as well as a public lands and take away the public’s statutes, eliminating references to “facial” challenge to the Wyoming constitutionally guaranteed freedom “open land.” However, subsection (c) statutes, the “end relief sought and of speech and freedom of expression,” still stated that an individual is guilty of primary analysis is facial in nature.” Ratner said in an October 29 statement. trespassing or commits a civil trespass to Third, Skavdahl found that the two “For years, Western Watersheds Project “access adjacent or proximate land” if he statutes were a “clear case of content has collected scientifi c data showing or she: “(i) Crosses private land to access based statutes” because they, “on their that the majority of streams on federal adjacent or proximate land where he face, penalize only the collection of public lands are contaminated by collects resource data; and (ii) Does not resource data relating to land or land fecal bacteria from livestock, and the have: (A) An ownership interest in the use.” He continued, “[T]he Wyoming legislature clearly intended to suppress real property or, statutory, contractual laws do not attempt to penalize any that information in order to protect the or other legal authorization to cross the data collection after crossing private livestock industry from accountability private land; or (B) Written or verbal land to access adjacent lands, but only under the Clean Water Act.” permission of the owner, lessee or agent the collection of data relating to land Michael Wall, litigation director of the of the owner to cross the private land.” or land use. The laws, on their face, are NRDC, said in a separate statement, “The The plaintiffs amended their complaint, content based” (emphasis in original). state tried to criminalize environmental contending that even as revised, the Finally, Skavdahl turned to whether advocacy.. . . That’s un American. statutes were unconstitutional as applied the laws survive strict scrutiny, meaning And as the federal court ruled, it’s and on their face. the restriction of speech must be unconstitutional.” On Sept. 7, 2017, the U.S. Court of necessary to serve a compelling state Mickey H. Osterreicher, general Appeals for the Tenth Circuit ruled interest and be narrowly tailored to counsel for the NPPA, also praised the that Wyoming’s statutes regulated achieve that interest. Skavdahl wrote ruling. “We are also very pleased that expressive activities protected under the that the state interest in this case was “to the court recognized the chilling effect First Amendment. Western Watersheds protect private citizens’ property rights,” that these laws have on citizens and Project v. Michael, 869 F.3d 1189 (10th but found that the statutes made “no journalists seeking to gather information Cir. 2017). Although the court did not attempt at regulating trespass by anyone on matters of public concern and we rule on the constitutionality of the laws, other than those that subsequently hope that other legislatures will think it remanded the case to the district court engage in land related data collection, long and hard before proposing and to determine what level of constitutional i.e., other than those that subsequently enacting constitutionally infi rm statutes,” scrutiny should apply and whether the engage in protected speech.” he said. laws will survive that review. Following Skavdahl further found that the David Muraskin, the Food Project the Tenth Circuit ruling, both parties defendants had “an even greater problem attorney for Public Justice, a nonprofi t fi led cross motions for summary when it comes to narrow tailoring,” legal advocacy organization that judgment. (For more information namely that they “failed to identify any represented the plaintiffs, was quoted on the background of the case and reason why the curtailment of speech is in an October 30 NRDC press release as the Tenth Circuit’s ruling, see Tenth ‘actually necessary to the solution’ of the saying, “This is a sweeping victory for Circuit Rules Wyoming Ag-Gag Laws identifi ed problem.” He added, “Trespass the First Amendment, and a scathing Regulate Protected Speech in “Minnesota can be regulated and criminalized rebuke of the industrial agriculture Legislature Introduces an ‘Ag Gag’ Law; without any requirement of subsequent industry’s brazen attempt to hide the Federal Appeals Courts Strike Down engagement in protected speech ways factory farms impact communities Two States’ Laws” in the Winter/Spring activities.. . . There is simply no plausible and the environment.” He continued, 2018 issue of the Silha Bulletin.) reason for the specifi c curtailment “Wyoming’s attempt to silence and In his Oct. 29, 2018 opinion, Skavdahl of speech in the statutes beyond a intimidate citizens, advocates and the fi rst determined that the plaintiffs had clear attempt to punish individuals for media has now met the same demise as suffi ciently established standing to bring engaging in protected speech that at similar laws in Idaho and Utah, sending a a First Amendment claim, fi nding that least some fi nd unpleasant. The laws clear message to industrial agriculture’s the advocacy groups had “engaged in are not narrowly tailored and fail strict lobbyists that their dependence on the past in the type of speech affected scrutiny.” secrecy to sell their product will not by the challenged government action” Skavdahl granted the plaintiffs’ survive. These laws are unjust and and had “provided affi davits stating a motion for summary judgement and unconstitutional, and we’ll continue to present desire, though no specifi c plans, rejected the defendants’ motion. His fi ght them from coast to coast until they to engage in such speech.” Skavdahl opinion is available online at: https:// have all been defeated or repealed.” held that the affi davits were suffi cient to www.westernwatersheds.org/wp prove “self censorship” and the “chilling” content/uploads/2018/10/2018.10.29 SCOTT M EMMEL of the plaintiffs’ speech and ability to DKt. No. 113.pdf. As the Bulletin went to SILHA BULLETIN E DITOR conduct undercover investigations. press, the defendants had not announced He added, “Plaintiffs have made a whether the state would appeal the case. 61 33rd Annual Silha Lecture Addresses the Free Speech Implications of the #MeToo Movement n Oct. 17, 2018, First even though the statute of limitations Trump vowed to fi le defamation lawsuits Amendment attorney for her sexual harassment claim had against the women who accused him of Theodore J. Boutrous Jr., the already expired. Judd ultimately decided sexual assault and harassment. In response global co chair of Gibson, to bring the lawsuit in order to set a legal to President Trump’s threats, Boutrous Dunn & Crutcher LLP’s precedent that would help those who tweeted on Oct. 22, 2016 that he would OLitigation Group, discussed the interplay experience retaliation in the workplace “represent pro bono anyone [President between the First Amendment and the bring their own lawsuits in the future, Trump] sues for exercising their free #MeToo movement during the 33rd Annual according to Boutrous. “The reason that speech rights.” Boutrous explained that Silha Lecture, “The Ashley wanted to bring this lawsuit was to “[t]he reason [he] thought it was important SILHA CENTER First Amendment take all this energy and momentum from to do this is because the threats of lawsuits and #MeToo,” at the #MeToo movement and take the next can deter people from speaking and can EVENTS the University of deter journalists Minnesota’s Cowles from engaging in Auditorium, with more than 250 people in “[The #MeToo movement] really shows journalism.” He attendance. Boutrous, who is representing how speech and individuals, famous continued, “I thought actor Ashley Judd in her defamation people and private people, speaking out it was important for lawsuit against fi lm producer Harvey the women who had Weinstein, argued that Judd’s case could about an issue, bringing it out from the spoken out and were produce a strong legal precedent that shadows, having a global dialogue about now threatened would allow victims of sexual harassment an issue, can change society.” with these suits to to stand up to their attackers and help know that there catalyze the next stage of the #MeToo — Theodore J. Boutrous, Jr., were lawyers in movement. the world who Gibson, Dunn & Crutcher’s Litigation Group global co-chair Boutrous began the lecture by noting would represent that he had spent most of his career them.” President defending news organizations from step and have legal action that can really Trump’s eventual election, he said, defamation claims and advocating for continue to change the world and improve prompted women to become more vocal broad First Amendment protections. He the professional arc for all women and about the problems they face with sexual said it was not until he began representing all men who might confront harassment harassment and sexual assault. Judd that he realized the importance and retaliation in the workplace,” he Boutrous said that the increase in of the First Amendment in the #MeToo contended. women coming forward against their movement. “It really shows how speech Boutrous then explained why he assaulters led Judd to accuse Weinstein of and individuals, famous people and private believed Judd’s case raises completely sexual harassment in an Oct. 5, 2017 New people, speaking out about an issue, different First Amendment issues than York Times article. Soon after the story bringing it out from the shadows, having a defamation lawsuits brought against broke, the #MeToo movement “exploded” global dialogue about an issue, can change media organizations. “The defamation on social media, according to Boutrous. society,” he said. “The #MeToo movement claim is easy for me to reconcile because “The fact that more and more women were is all about speech.” (For more information it doesn’t involve public debate or public coming forward with their stories about on Boutrous, see “Theodore J. Boutrous, controversy,” he argued, “but rather it what happened to them brought all these Jr. to Deliver 33rd Annual Silha Lecture: was a purely — we allege — malicious horrible events out of the shadows and ‘The First Amendment and #MeToo’” in the effort to injure someone for inappropriate created this dialogue,” he said. He added Summer 2018 issue of the Silha Bulletin.) reasons.” When defamation law was fi rst that the movement culminated in the Time Boutrous gave a brief overview of developed, he said, it was intended to magazine “Person of the Year” award Judd’s case against Weinstein, which address situations just like Judd’s — where being given to “The Silence Breakers,” claims that Weinstein “defamed Ashley blatantly false statements damage demonstrating how the #MeToo movement Judd, trashed her professionalism to someone professionally. is a “free speech movement” because it retaliate against her for rebuffi ng his Next, Boutrous detailed the #MeToo celebrated bringing harassment issues to inappropriate sexual advances, [which] movement’s origin. He said that the light and fi nding avenues to redress them. really changed the trajectory of her career movement began to gain traction when Boutrous noted that although the in a serious way.” Boutrous elaborated former Fox News host Gretchen Carlson #MeToo movement was largely about on the retaliation, explaining that Judd sued then Fox News CEO Roger Ailes speech, some of the accused used various was denied a role in the Lord of the for defamation in 2016. He argued that tactics in order to try to stop accusers Rings trilogy because Weinstein had told Carlson’s case, and the $20 million from coming forward. He alleged that others in the industry that he had a bad settlement, brought attention to the Weinstein and others used threats of experience with her and that she was a prevalence of sexual harassment in the defamation lawsuits, nondisclosure “nightmare to work with.” Boutrous said workplace. agreements, and harassment in order that when it came to light that Judd was The next major moment in the to suppress speech. According to harmed professionally and economically movement, according to Boutrous, Boutrous, this is an example of why by Weinstein’s comments, she brought happened during the 2016 presidential First Amendment protections need to be a defamation suit to redress the injury, campaign, when then candidate Donald strengthened in order to protect the people 62 who were speaking out and the news false speech. The negligence standard, defames her, that’s a defamation case and I organizations who were reporting on the conversely, would apply in matters of don’t think the First Amendment has much accusations. private concern. “It seems to me with the of any concern with that, and time’s up for To explain how he believes First platforms that we have and with social that kind of behavior in this country.” Amendment protections need to be media, the public concern test . . . really During a Q&A session moderated by expanded, Boutrous fi rst discussed the makes a lot more sense because there is a Silha Center Director and Silha Professor history of defamation rulings — beginning way for private individuals to correct the of Media Ethics and Law Jane Kirtley, with New York Times v. Sullivan, 376 U.S. record,” he said. “So, instead of lawsuits, Boutrous suggested that there could be 254 (1964). Boutrous loosely quoted the which can be terribly ineffective . . . there’s legal repercussions for individuals who U.S. Supreme Court’s fi nding that the First a way to correct the record through speech are complicit in sexual harassment cases. Amendment refl ects “a profound national on these social media platforms.” Boutrous “There are allegations, for example, commitment to the principle that debate predicted that the Supreme Court would that Harvey Weinstein’s production on public issues should be uninhibited, eventually move towards this standard and company . . . knew what was going on,” robust, and wide open, and that it may well broaden the First Amendment protections he said. “I think, if there is that sort of include vehement, caustic, and sometimes for matters of public discussion and public situation, under tort law . . . there could be unpleasantly sharp attacks on government concern – regardless of the speaker. liability.” He also noted that legal actions and public offi cials.” Boutrous also noted that social media stemming from the #MeToo movement According to Boutrous, social has greatly increased the amount of law could shape how courts view media’s surge in popularity has led to speech, joking that 1,000 defamations had nondisclosure agreements with extremely an increase in public speech and allows likely occurred on social media during high liquidated damages clauses. “I do individuals to reach larger audiences his 45 minute lecture. Although he noted think courts are going to be more skeptical than ever before, undercutting one of that the increase in defamatory speech of those sorts of clauses,” he said. the underlying doctrines of the Sullivan may cause some observers to advocate “Sometimes they are used as a device to actual malice standard, which requires for looser defamation laws allowing muzzle speech and to conceal a pattern of proof that defendants knowingly made more lawsuits, he argued that the speech downright evil behavior.” false statements or made statements with is overall less damaging because social Boutrous concluded the Q&A session reckless disregard for their truth or falsity. media allows for corrections to be almost by stating that businesses need to According to Boutrous, the Supreme Court instantaneously. “There has been this, I provide their employees with a way to created this standard because public think, really powerful ability to both make report sexual harassment without fear fi gures had a platform to respond to and false statements, but then to correct the of retaliation. “The most important thing correct defamatory statements, whereas false statements much faster than you ever that employers and companies can do is private individuals did not have the same could before we had these social media to have a system where women feel that reach. Conversely, in the social media platforms,” he said. Boutrous argued that they are free to go report things and that age, Boutrous asserted, both private and in the cases where speech is blatantly false they will not be retaliated against,” he said. public fi gures involved in matters of public and extremely damaging, like in Judd’s “Every company and organization needs concern have access to large audiences, case, his proposed changes to defamation to look at their system and say ‘let’s make and have the ability to correct any false law would still allow for meaningful this a really good system, let’s make it statements, therefore making Sullivan’s lawsuits to recover damages. fair and responsive,’ so people will come speaker distinction less persuasive. Boutrous concluded by asserting that forward.” Boutrous advocated for a move away the #MeToo movement was a product A link to a video of the lecture is from the Sullivan’s speaker distinction, of brave women who decided to come available on the Silha Center website at and argued instead for a “public concern forward, journalists who covered the silha.umn.edu. Silha Center activities, test.” According to Boutrous, the actual allegations with integrity, and the First including the annual lecture, are made malice standard should apply in matters Amendment. “At the same time,” he possible by a generous endowment from of public concern, when all individuals, continued, “when a powerful man the late Otto and Helen Silha. regardless of their notoriety, have access retaliates against a woman for rebuffi ng to large audiences in order to correct his sexual advances and then secretly KIRSTEN N ORDSTROM SILHA R ESEARCH A SSISTANT
The video of the 33rd annual Silha Lecture, “The First Amendment and #MeToo,” with Theodore J. Boutrous, Jr., is available online at: https://www.youtube.com/watch?v=VThcal2VdJc&t=855s.
63 Silha Center for the Study of Media Ethics and Law Non profi t Org. Hubbard School of Journalism and Mass Communication U.S. Postage University of Minnesota PAID Twin Cities, MN 111 Murphy Hall Permit No. 90155 206 Church Street SE Minneapolis, MN 55455 (612) 625 3421
Silha Research Assistantships
The Silha Center offers Research Assistantships to outstanding law and graduate students with an interest in media law and media ethics. Silha Research Assistants are responsible for writing, editing and producing the Silha Bulletin during the academic year and the summer semester. They also assist Silha Professor Jane Kirtley with a variety of research projects, such as preparing a comprehensive outline on global privacy for the Practising Law Institute’s annual Communications Law in the Digital Age conference handbook; amicus briefs (including before the Supreme Court of the United States); and comments on proposed rules and regulations submitted to federal, state and international bodies.
The number of available Research Assistantships varies from year to year. Appointments are competitive. A strong academic record and excellent legal research and writing skills are required. Journalism experience is strongly preferred. Applicants must be currently enrolled at the University of Minnesota.
Applications for Summer 2019 and for the 2019-20 academic year will be due on March 18, 2019.
For more information, please visit the Silha Center website at http://www.silha.umn.edu.