nylj.com | Wednesday, May 1, 2019 | 7

Free Speech, Free Press, Free Society

Independent Judiciary And Independent Press Are Crucial To Free Society

Janet DiFiore

Chief Judge State of New York

“If freedom of speech is taken decisions. Lawyers, however, face away, then dumb and silent we no such restriction. Indeed, as the may be led, like sheep to the rule of law’s ultimate defenders, law- slaughter.” yers have a special responsibility to —George Washington speak out in defense of judicial inde- pendence and push back resolutely his year’s Law Day theme— against those who seek to politicize TFree Speech, Free Press, Free the judiciary and foment disrespect Society—challenges us to consider for judges. We cannot allow the judi-

Ch ris G oodney /B loomberg the relationship between the First ciary to become a casualty of par- Amendment and the rule of law. In tisan politics and the culture wars. only 45 words, the First Amendment Similarly, attacks on the media photo Essay of the United States Constitution branding it the enemy of the people protects freedom of speech, press, destabilize our republican form of religion, assembly and petition. government. Just as an impartial and These cherished, uniquely American independent judiciary capable of Impact of rights are at the heart of our demo- protecting our fundamental rights cratic tradition and underscore our Free Speech in commitment to an open culture that values human expression and con- A Digital Age science. Freedom of speech and press are Americans Oppose Excerpts from the ABA’s the great enablers of democratic Hate Speech Laws ‘Law Day 2019 Planning Guide’ participation, providing the means by which our citizenry can debate But Say Hate Speech the issues of the day, evaluate the Is Morally Unacceptable. reedom of speech and free- performance of our elected repre- Fdom of the press protect sentatives, cast our votes and help journalists and other people shape the direction of our nation’s 59% Of respondents said from interference by the gov- policies and laws. As the Supreme government should allow hate speech. ernment in the dissemination Court stated: “There is practically of information. But people, universal agreement that a major 40% Believe government should including the press, have a purpose of the First Amendment prevent hate speech. responsibility not to communi- was to protect the free discussion 79% Said hate speech is morally cate false information.[…] of governmental affairs.” Landmark unacceptable. In 1997, during the early Communications v. Virginia, 435 U.S. 19% Believe it is morally years of Internet usage /B loomberg S imon D awson 829, 838 (1978). acceptable. among the public, the Supreme Furthermore, as George Wash- Court recognized in Reno v. ington suggested, the First Amend- American Civil Liberties Union The Internet, smartphones, and social media have all enabled us to share more information more quickly ment is also an important defense Source: ‘Law Day 2019 Planning that the First Amendment rights than ever before. In the top photo, customers looks at smartphones on display at a Samsung event in against secret government, authori- Guide’ of free speech and free press New York. Above, a demonstrator wears a mask depicting Facebook CEO Mark Zuckerberg, as he stands tarianism and tyranny. Indeed, a free applied to this new communica- with demonstrators wearing angry emoji masks outside the venue of a U.K. parliamentary committee press serves as the watchdog of our tion frontier. The Court’s ruling hearing in London last year. Below, some of the Facebook and Instagram ads linked to a Russian effort democracy, reporting on important supported the ACLU’s position to disrupt the American political process and stir up tensions around divisive social issues, released by events and issues, identifying wrong- and liberties is an indispensable in the case that the Internet is a members of the U.S. House Intelligence committee, are photographed in Washington, D.C. doing and injustice and ensuring pillar of our tripartite system of “freespeech zone.” transparency and accountability government, so too is a free press. Today, important issues, in all areas of our society. As stated in 1786: such as “fake news” and As judges and lawyers who value “Our liberty depends on the freedom cyberbullying, heighten con- the rule of law and understand the of the press, and that cannot be lim- cern over what speech should power and purpose of the First ited without [liberty] being lost.” and should not be protected Amendment, we must be vigilant in It is increasingly urgent for the under the First Amendment. responding to new challenges cre- legal profession, the press and our Most major social media ated by the rise of the Internet and schools and educators to work sites—such as Facebook, social media, and by the powerful together to improve civic knowledge YouTube, Twitter, and Insta- ways in which they are influencing and galvanize public support for an gram—have content and pri- our public discourse. The growing independent and impartial judiciary vacy policies meant to police tendency of people to consume and a free and independent press. A their sites. However, these news and information from media public lacking basic literacy about same policies, many argue, outlets which confirm their existing the roles and functions of the three have led to the suppression of viewpoints is politicizing our debate branches of government and con- activist speech that support on public issues. In this climate, we stitutional imperatives like judicial causes perceived to be unpopu- have seen public attacks on judges independence will be vulnerable to lar. And these standards are by political leaders which have propaganda and find it difficult to generally outside any review gone far beyond disagreement with distinguish between appropriate under the First Amendment the merits of judicial decisions to and inappropriate criticism of our because they are imposed by include personal invective designed courts. Judges are not immune from private companies and not by to intimidate judges and undermine criticism, of course, but the public government. What does it mean their legitimacy and authority in the needs to understand that there is that private, for-profit compa- public eye. a critical difference between dis- nies have so much power to As members of the only non- agreeing with a decision and say-

control speech that is critical J on E lswic k/AP political branch of government, ing a judge was wrong on the mer- to a free society? judges generally are ethically pro- its and making personal attacks or hibited from responding to criticism intimidating statements calculated or discussing the merits of their to delegitimize judicial » Page 10

Inside The Vital Relationship Between the Courts and the Press Liberty Begins at Home: New York’s Vital Role In Preserving a Free Press understanding and knowledge concerning court initiatives, pro- in contrast to many other juris- by Rolando T. Acosta...... 8 Lawrence K. Marks of the workings of the courts is grams and events, administrative dictions, New York prohibits the critical to achieving public trust appointments and other official broadcasting of witness testi- Freedom of Information Chief Administrative Judge and confidence in our justice announcements, and maintains mony from trial courtrooms (see Is Integral for a Free Press New York State system, we rely heavily on news the court system’s social media Civil Rights Law §52). Although by Alan Scheinkman...... 8 Unified Court System media to educate the public about accounts. The Office regularly several decades ago New York what we do and how we operate. fields questions about court cases, experimented with audio/visual Our Free Press: Thus, ensuring transparency in the and often assists reporters in gain- coverage, including witness testi- A Historical Perspective operation of the courts requires ing physical access to court pro- mony, of most trial court proceed- by Elizabeth A. Garry...... 8 cooperation between the courts ceedings. It also assists the press ings subject to certain limitations, and the news media. in obtaining access to court files, that legislation lapsed in 1997. Internet Is an Essential he Unified Court System is a end up serving on a jury. A much To further that goal, the court caseload data and other relevant For trial court proceedings that Conduit to Exercising Tlarge and complex government smaller number interact with system’s Public Information Office information about the courts. We do not involve witness testimo- Our Right to Assemble institution that impacts the lives courts as participants in litigation. works on a daily basis to provide fully recognize the vitally impor- ny, still photography and audio/ by Gerald J. Whalen...... 9 of New Yorkers in countless ways. Because there is such limited information about the Unified tant role of the news media, and video coverage are permitted at Despite that, relatively few New opportunity for the great majority Court System to both internal we strive to assist them in gain- the discretion of the judge. The We Must Protect ‘One of the Yorkers have direct involvement of New Yorkers to directly interact and external audiences, espe- ing access to the information they Court of Appeals and the four Greatest Bulwarks of Liberty’ with the courts or the legal pro- with our justice system, much of cially members of the press. The need. Appellate Division Departments by Michael Miller...... 9 cess on a regular basis. Most who what they learn about the courts Office is responsible for prepar- Of course, the press is welcome are not subject to this prohibition directly interact with the court comes from the media—newspa- ing and distributing to local and and, indeed, have a constitutional because appellate proceedings system are those summoned for pers, television, radio and, increas- statewide media outlets press right to attend and report on court do not involve testimony, and so Law Day: A ngela Turturro, Sections Editor jury service, few of whom actually ingly, social media. Because releases and media advisories proceedings. Notably, however, each court live streams » Page 10 Monika Kozak, Design 8 | Wednesday, May 1, 2019 | nylj.com Liberty Begins at Home: New York’s Vital Role Freedom of Information In Preserving a Free Press Is Integral for a

In the face of these events, it is policy as embodied in the Consti- Free Press Rolando T. Acosta appropriate to reflect on the impor- tution and our current statutory tant role played by New York law scheme provides a mantle of pro- Presiding Justice and courts in preserving freedom tection for those who gather and Appellate Division, of the press under our federalist report the news—and their con- Alan Scheinkman First Department system. Article I, §8 of the New York fidential sources—that has been State Constitution, which guaran- recognized as the strongest in Presiding Justice tees the right of “[e]very citizen” the nation.” Matter of Holmes v. Appellate Division, to “freely speak, write and publish Winter, 22 N.Y.3d 300, 310 (2013). Second Department his or her sentiments on all sub- These foundational principles of jects,”6 provides protections that New York law are of increasing ew York has a rich history of have been banned from the White are broader than those afforded by importance in an environment that Nsafeguarding freedom of the House,2 secretly monitored at the the First Amendment. See O’Neill threatens to erode free-press pro- press. As I sit in my chambers southern border and targeted for v. Oakgrove Constr., 71 N.Y.2d tections at the federal level at our majestic First Department questioning,3 even slaughtered 521, 529 n.3 (1988); Immuno AG New Yorkers were early sup- he First Amendment to various ways, is in fairly good courthouse, located on the avenue by a foreign authoritarian regime v. Moor-Jankowski, 77 N.Y.2d 235, porters of . Tthe United States Constitu- shape, at least in the sense named for the chief author of the with no presidential rebuke.4 Mean- 249 (1991); People ex rel. Arcara v. In 1735, printer John Peter tion provides that “Congress that social media and internet First Amendment, I am reminded while, there have been calls to Cloud Books, 68 N.Y.2d 553, 557-58 Zenger was prosecuted for sedi- shall make no law … abridg- communication in general have that James Madison called freedom “open up the libel laws” to make it (1986). New York’s “Shield Law,” tious libel for publishing negative ing the freedom of speech, or made it very easy, perhaps too of the press “one of the great bul- easier for public figures to pursue Civil Rights Law §79-h, further articles about the Governor and of the press.” The Free Speech easy, for each of us to say virtu- warks of liberty.”1 One can only and prevail in lawsuits over press bolsters journalistic autonomy refusing to disclose his source. Clause, of course, protects the ally anything about everything, imagine what our fourth presi- coverage they dislike.5 Indeed, in by giving journalists an absolute Although truth was not a defense freedom of each individual in our potentially anonymously and to dent would think of the frequent a recent concurring opinion, U.S. privilege against disclosure of their under the governing English law, society “to express [oneself] in the entire world, virtually with- pronouncements demonizing the Supreme Court Justice Clarence confidential sources and a strong Zenger’s counsel argued that the accordance with the dictates of out constraint and, indeed with- press as the “enemy of the Ameri- Thomas proposed the elimination qualified privilege against disclo- jury should consider the truth of [one’s] own conscience.” Wallace out reflection. Yet, at the very can people,” much less the attacks of the actual malice requirement sure of non-confidential materials the published statements, but the v. Jaffree, 472 U.S. 38, 49 (1985); time we are bombarded with on journalism and journalists that in defamation cases. See generally collected during news-gathering court instructed the jury that it see, e.g., Cohen v. California, a torrent of words and images have been committed and counte- McKee v. Cosby, 586 U.S. __ (2019) activities.7 As the Court of Appeals was only to decide whether Zenger 403 U.S. 15, 24 (1971); Whitney through both traditional media nanced in recent times. Reporters (Thomas, J., concurring). has observed, “New York public had published the » Page 10 v. California, 274 U.S. 357, 375- and through new forms of social 76 (1927) (Brandeis, J. concur- communication, our entitlement ring)). The Free Press Clause, to be apprised of determinable while directly protecting the facts, or, to put it differently, our news gathering and publication right to accurate information, is freedoms of journalists, is ulti- not faring so well. We are flooded mately for the benefit of all of with a steady stream of commu- us—the public at large. See Time nications which purport to pro- v. Hill, 385 U.S. 374, 389 (1967). vide information—indeed, expo- The principal right guaranteed nentially more information than under this clause is, at bottom, ever before—but that stream is the right of the public to informa- heavily polluted with distortions, tion. See New York Times Co. v. propaganda, and “fake news,” Sullivan, 376 U.S. 254, 272 (1964) which severely compromise the (“‘The protection of the public ability of the populace to make of C ongress L ibrary requires not merely discussion, critical judgments about the poli- but information’”), quoting Swee- cies and conduct of its leaders. Courtroom sketch depicting the trial ney v. Patterson, 128 F.2d 457, We have seen foreign nations, of ‘Crown v. John Peter Zenger,’ at 458 (D.C. Cir. 1942); Grosjean v. and others, undertake to use left. American Press Co., 297 U.S. 233, the modern tools of technology 250 (1936) (“The predominant to deliberately spread false infor- Old City Hall, where the trial took purpose of the grant of [the Free mation on a widescale, precisely place, with the courtroom on the Press Clause] was to preserve in order to divide us, undermine second floor, above. an untrammeled press as a vital our confidence in our leaders, source of public information”); and cause us to doubt ourselves A page from Zenger’s New-York see also New York Times Co. v. and our democratic ideals. We Weekly Journal, Jan. 7, 1733. United States, 403 U.S. 713 (1971) have developed a tendency for (Black, J., concurring) (“The each of us to retreat into the press was protected so that it cocoon of whatever media outlet could bare the secrets of govern- provides news that fits our pre- ment and inform the people”). existing world views. We seek to Providing the public with avoid learning things new and dif- ferent; we take comfort in having John Peter Zenger, printer of the New York Weekly Journal, was charged with seditious libel for publishing information is not an end in itself, but rather is a prerequi- our existing store of knowledge, criticism of colonial governor William Cosby, violating English law that prohibited publishing criticism of site to the ability of the people however strongly or weakly con- the government that would lead to public dissatisfaction. Zenger’s lawyers, Andrew Hamilton and William to intelligently participate in stituted, reinforced. It was once Smith, argued that the truth of the articles was a defense to the libel charge, and convinced the jury that self-government. When the said that each of us is entitled Zenger should be acquitted. This trial, which is part of the groundwork of freedom of the press, took place at Free Press Clause was adopted, to our own opinions but not to what is now the Federal Hall National Memorial in New York. “‘[t]he evils to be prevented were our own facts. Now we live in a not the censorship of the press world in which we often claim merely, but any action of the gov- entitlement to our own facts, ernment by means of which it regardless of their provenance might prevent such free and gen- or probability. eral discussion of public matters Of course, the law should Our Free Press: A Historical Perspective as seems absolutely essential to not—and cannot—ensure the prepare the people for an intelli- accuracy of all publicly dis- gent exercise of their rights as cit- seminated information, but it assertions, or Croswell’s intent of the published statements should izens.’ … [S]ince informed public can, and must, protect members Elizabeth A. Garry in making the publication. Given be admissible as evidence of the opinion is the most potent of all of the press and others whose these instructions, the jury was publisher’s intent. See People v. restraints upon misgovernment, proper role it is to keep the us, Presiding Justice thus constrained to find Croswell Croswell, 3 Johns Cas at 360-61. the suppression or abridgement the electorate, informed, to cut Appellate Division, guilty (see People v. Croswell, 3 The vote was divided 2-2, and of the publicity afforded by a free through the clutter and the flack, Third Department Johns Cas 337, 342 (Sup. Ct. 1804); Croswell’s motion for a new trial press cannot be regarded other- and help us separate fact from see also Paul McGrath’s in-depth was denied. However, later that wise than with grave concern.” fiction. The U.S. Supreme Court treatment of the matter, published year, the Legislature did pass a bill Grosjean v. American Press Co., has, for example, recognized by The Historical Society of the regarding charges of libel. William 297 U.S. at 249-50, quoting 2 that the Free Press Clause pro- Courts of New York State: “People W. Van Ness, who had served as Cooley's Constitutional Limita- hibits prior restraint of publica- v. Croswell: Croswell’s attorney at trial and on tions (8th Ed.) p. 886. tion (see Near v. Minnesota, 283 lthough our entitlement to capacity to evolve and accommo- and the Transformation of the the appeal, was also a member of To put the matter more suc- U.S. 697 (1931)), even where the Acertain fundamental freedoms date change is a source of strength Common Law of Libel,” 7 Judicial the Assembly, and he introduced cinctly, while freedom of speech material to be published alleg- may be self-evident, the rights for our enduring constitutional Notice 5, 11 (2011). the bill. The proposed bill incor- may be viewed as protecting edly implicates national security protecting those freedoms were democracy. Alexander Hamilton was one of porated the principles espoused expression that emanates from concerns. See New York Times born out of struggle—first the In 1804, newspaper publisher the attorneys representing Cro- by Hamilton during his argument the mind of a particular person, Co. v. United States, 403 U.S. 713 revolutionary struggle that won Harry Croswell was indicted swell, and he traveled to Albany in the Croswell case; among other freedom of the press may be (1971) (the Pentagon Papers our independence, and now the on charges of criminal libel and in 1804 to seek a new trial. The things, the proposal empowered viewed as protecting the flow case). The Free Press Clause ongoing struggle to interpret and sedition for publishing claims highly anticipated court appear- juries to determine the law and the of information that may enter also restrains the government’s apply our law in a rapidly changing that President Thomas Jefferson ance was attended not only by facts, and provided that a defen- the public consciousness. While power to subject the distribu- world. As we consider the mean- had paid another publisher, James curious members of the public, but dant could introduce evidence the uninhibited thought and tion of information to taxation ing and future of free speech and Callender, to print negative stories also many members of the New of truthfulness in his defense, so expression that is facilitated by or licensing requirements. See free press in our free society, this about Jefferson’s political adver- York State Senate and Assembly, long as the publication was made freedom of speech is essential Lovell v. City of Griffin, 303 U.S. year’s Law Day theme provides an saries. Croswell’s attorney attempt- who were at the time considering “with good motives and justifiable to human liberty, an informed 444 (1938); Grosjean v. American opportunity to look back upon the ed to introduce evidence regarding a bill that would allow truth as a ends.” People v. Croswell, 3 Johns electorate, facilitated by freedom Press Co., 297 U.S. 233 (1936). history of those freedoms and the the truth of the statements, but defense against charges of libel. Cas 337, 412 (Sup. Ct. 1804) quoting of the press to inform, educate In addition, the Supreme Court laws that guarantee them. The law the jury was instructed to deter- See McGrath at 15; Ron Chernow, sess. 28 c. 90 (1805); see McGrath and enlighten, is essential to has held that the First Amend- regarding free press has been in mine only whether Croswell had, Alexander Hamilton 669 (2005). at 17. Thereafter, Croswell was democracy. ment prohibits state courts from flux at various times before, dur- in fact, made the publication— Hamilton’s six-hour-long argument ultimately awarded a new trial, At this moment in our history, awarding damages for defama- ing and since its adoption as one and that they were NOT to con- contended, among other things, and the prosecution declined to freedom of speech, while seem- tion to public officials in the of our founding principles, and its sider the truth of the underlying that evidence regarding the truth retry him. See McGrath » Page 10 ingly perpetually threatened in absence of a showing » Page 10

‘Heed Their Rising Voices’ was In ‘Tinker v. Des Moines Inde- an advertisement published pendent Community School in the New York Times and District,’ a landmark decision paid for by the Committee to addressing the First Amend- Defend Martin Luther King and ment rights of U.S. public the Struggle for Freedom in the school students, the Supreme South to attract support for King Court ruled that the school against an Alabama perjury board was wrong to suspend charge. The advertisement, students protesting the Viet- which was critical of actions nam War by wearing black taken against civil rights pro- armbands to school. “It can testers in Montgomery, became hardly be argued that either

the basis of a civil libel suit /AP M anuel B alce C eneta students or teachers shed their when the Montgomery police constitutional rights to freedom commissioner sued The Times. of speech or expression at In ‘New York Times Co. v. Sul- the schoolhouse gate,” wrote livan’, decided March 9, 1964, Justice Abraham Fortas, who the Supreme Court established delivered the opinion of the the “actual malice” standard— court. public officials cannot sue for libel unless they prove that a Top left, students Mary Beth Tin- statement was made with “actu- ker and her brother, John display al malice,” that is, knowing or two black armbands in 1968. reckless disregard for the truth. Student protesters marching down Langdon Street at the At left, advertisement published University of Wisconsin-Madison C ollections UW D igital

arc h ives N ational in the New York Times on March during the Vietnam War era in 29, 1960. January 1965. nylj.com | Wednesday, May 1, 2019 | 9

digitalization of the town square Internet Is an Essential Conduit bridges physical distances and We Must Protect introduces people, thoughts, and experiences to which we would not otherwise be exposed, and To Exercising Our Right to Assemble can facilitate understanding and ‘One of the Greatest empathy due to the context this communication provides. The Alabama ex rel. Patterson, 357 U.S. Internet permits private interac- Bulwarks of Liberty’ Gerald J. Whalen 449, 460-62 (1958)).The historical tion, certainly, but it also permits significance of this right, early people, regardless of physical dis- Presiding Justice manifestations of which include tance or other traditional impair- Appellate Division, eighteenth century political soci- ments to collective action, to unite Michael Miller Fourth Department eties and their initially scandalous to discuss and advocate their expressions of open criticism of shared ideals to the government President the federal government, is the or the public in general. New York State “understanding of popular sov- Moreover, although the Internet Bar Association ereignty and representation in may not be a public forum in and which the role of the citizen was of itself (see generally United States mong the essential rights guar- redress of grievances” (U.S. Const. not limited to periodic voting, but v. American Library Assn, 539 U.S. Aanteed by the First Amend- amend. I) constitutes an “attribute instead entailed active and con- 194, 205-07 (2003) (plurality opin- ment, “the right of the people of national citizenship” (United stant engagement in political life” ion); Elizabeth Henslee, A Funny peaceably to assemble” seems States v. Cruikshank, 92 U.S. 542, (Robert M. Chesney, Democratic- Thing Happened on the Way to the he overarching theme of this the press as an institution. He to garner little distinct discus- 547 (1875)). Republican Societies, Subversion, Public Forum, 43 Cap. U. L. Rev. Tyear’s Law Day, Free Speech, labels any unflattering or critical sion, although it is recognized as The importance of the right to and the Limits of Legitimate Politi- 777, 826-30 (2015)), social media Free Press, Free Society, is free- story “fake news” and frequently being inextricably bound with and peaceably assemble can be found cal Dissent in the Early Republic, is often the catalyst for the tradi- dom of expression, the bedrock declares that the press is “the “equally fundamental” as those in the traditional characteristics 82 NC L. Rev. 1525, 1537-40 (2004); tional, real-world exercise of the upon which our constitutional enemy of the people.” of free speech and free press. De ascribed to its exercise: Often the see Inazu, 84 Tul. L. Rev. at 577-81). right of assembly in its most “pris- democracy is built. The unprec- Hitler’s Propaganda Minister Jonge v. State of Oregon, 299 U.S. right is invoked by those who “dis- Today, assembly is not only tine and classic form”: a peaceable edented assault upon this pre- Joseph Goebbels frequently 353, 364 (1937). Indeed, at least sent from the majority and con- a conduit for the expression of gathering to protest grievances cious freedom by our current referred to Jews as “a sworn one scholar describes this right as sensus standards endorsed by political dissent against the gov- inflicted by government (Edwards President and his supporters enemy of the German people” having become “a historical foot- government” and who seek public, ernment, but an important tool v. South Carolina, 372 U.S. 229, 235 is dangerous and alarming, as it who posed a risk to the führer’s note in American political theory advocacy-oriented visibility (see for recognizing and amplifying (1963); Inazu, 84 Tul. L. Rev. at 566). undermines the American pub- vision for the country. Goebbels and law.” See John D. Inazu, The Inazu, 84 Tul. L. Rev. at 570). The otherwise marginalized voices in In other words, it has become an lic’s confidence in the institutions wrote that “if someone wears the Forgotten Freedom of Assembly, exercise itself tends to be more our society. More and more often essential conduit to the exercise of of government—Congress, the Jewish star, he is an enemy of 84 Tul. L. Rev. 565, 566 (2010). expressive than simple associa- our nation’s citizens meet in cyber- this right. Far from an idle informa- Executive Branch and the Judi- the people.” This profoundly Nonetheless, the right to peace- tion, which can be private, and space to opine and discuss and tion stream, activists—seasoned ciary, as well as the press. The dangerous rhetoric and strategy ably assemble for the purpose may manifest in parades, demon- decry and, yes, ‘like’ positions on or newly fervent alike—utilize vitality and future of our consti- of constant attack on adversar- of advancing beliefs and ideas or strations, and other creative forms issues, not only of politics, but of social media to raise awareness, to tutional democracy is threatened ies used by Hitler and others in “to petition the Government for a of engagement (id.; cf. NAACP v. our societal values as well. This organize, and to mobi- » Page 10 when the public loses confidence Nazi Germany led to some of in its most basic institutions and the darkest days in modern his- ideals. tory—World War II and the Nazis’ The first 10 amendments to the systematic extermination of six U.S. Constitution were adopted million Jews, and millions more in 1792, three years after adop- Roma, disabled persons, gay men tion of the Constitution itself, and and others. are commonly referred to as the During a period referred to Bill of Rights. The first of those as the “Reign of Terror” after amendments provides the essen- the French Revolution, a law tial support for the most funda- was enacted that established mental of all rights, the right of a special tribunal to punish the free expression of ideas. “enemies of the people.” Count- Freedom of expression is less thousands were declared the tyrants’ greatest enemy. enemies of the people for crimes Throughout history, when that included “spreading false authoritarian leaders have been rumors” and were summarily unhappy with perceived criti- guillotined. cism from the news media and Lenin is quoted as saying others, they have often referred that he found “instructive” the

M arcio J ose S anc h ez /AP of C ongress L ibrary to those critics as the “enemies French policies against “enemies of the people.” Thereafter, fre- of the people.” Lenin and Stalin quently, blood has flowed, and employed the term to all who Results of the 2017 Facebook CEO Mark Zuckerberg, newspaper reporters for the “Daily people have died. disagreed with their policies or Gallup/Knight Foundation top left, makes the keynote address Splurge” rushing to the office to toss Whenever President Trump ideology, from political opposi- Survey on Trust, Media at F8, Facebook’s developer confer- their stories onto the printing press, is unhappy with a judicial deci- tion leaders to members of the press to those who wrote critical and Democracy indicate ence in San Jose, Calif., last year. such stories as “A Week as a Tramp!! sion, he derides the judiciary. He Wild and Exciting Experiences of a refers to a judge duly approved articles to clergy who opposed that most Americans find it Above and at left, an illustration by Daily Splurge Reporter”, “Life in Sing by Congress as a “so-called state-mandated atheism. Being harder to be well-informed Frederick Burr Opper titled ‘The fin Sing—a Splurge Reporter in Disguise”, judge.” When he is unhappy with called an enemy of the people and to distinguish accurate de siècle newspaper proprietor’ “Divorce Court Details”, “How beggars news media coverage, he attacks could result in immediate impris- from fake news, and increas- published in 1894, and a close-up, are treated on 5th Ave. by Fanny Fake”, onment, banishment to a Russian ingly perceive the media shows a newspaper owner sitting in a and “High Spiced Sensation.” A notice Gulag, or worse. as biased. chair in his office next to an open safe hanging on the wall of the office states Michael Miller is a solo practitioner During the harshest days of where “Profits” are spilling out onto “The Motto of the Daily Splurge— in Manhattan. the cultural revolu- » Page 10 the floor; outside this scene are many Morality and a High Sense of Duty”.

FAX OR EMAIL Y OUR O RDER Reprints - Content & Licensing Sales [email protected] • Fax: 646-822-5035 • Tel: 877-257-3382 150 East 42 Street, Mezzanine Level, New York, NY 10017

PLAQUE ORDER FORM

Commemorate passing the bar with a personalized plaque!

Published April 25, 2019 SHIPPING INFORMATION Name: ______

G THE B IN E V N Company: ______C R H E S

A N 8 D 8 B 18 AR SINCE WWW. NYLJ.COM WEDNESDAY, OCTOBER 28, 2015 Address: ______New York State Bar Results ______List of Applicants Who Passed the July Bar Examination MICHAEL STUVER NICOLE ELIZABETH SUMILANG SAMANTHA KATE Following is the list issued by the State Board of Law Examiners of the STRAUSS ALEXANDRIA SU LUNGA SUMMER RACHEL PAM names of the 6,495 candidates who passed the bar examination given on SU QIWEN SUMMIT SARAH ASHLEY July 28 and 29. Of the 10,671 candidates who took the exam, 61 percent were RACHEL SU XI BING SUN ANGELA certied for admission to the bar and are to be interviewed by appropriate STRAUSS CORY PHILIP SU ZUBIN SUN DAO Committees on Character and Fitness. STRAUSS JOHANN SUAREZ JACQUELYN ALEXA SUN MINGYANG Copies of this list can be obtained by contacting ALM Reprints at 877-257- STRAUSS MARLEY KADIS City:______SUAREZ JULIUS JEROME SUN XINRU 3382 or by visiting http://www.law.com/jsp/reprints/index.jsp. STRAUSS MICHAEL ELLIS STRICKLAND CODY SCOTT SUBRAHMANYAM SUN YIMING STRICKLINSTRICKLING TAYLOR DIVYA VARUNI SUN YINGHUI STEPHEN CAITLIN ELISE STEWART YI WANG SUCCOP STEVEN SUN YU STEPHENS CAELYN ELIZABETH STFLESTFLEUUR RIICHARDCHARD SSTEVETEVEN STRINGFFIEIELD JAJACCK HOWARD-STANLEY SUDDOCK KARAKARA BARBARBARBARA SUN YUCHUAN STEPHENSON AMY ELIZABETH STITT JEFFREY CARL SUERO GARCIA WALESKA SUNDQUIST EDWARD STEPHENS-ROMERO STOECKER BRIAN FREDERICK STROE PETER FABIAN STROMSTEDT LARS SUH MI CHEUNG ANTHONY JENNIE SOFIA STOKELY MARK ROBERT CHRISTOFFER SULLIVAN ALEXANDRA SUNG FREDERICK C STERMAN JAY ONGRSTOALTZ ATUDAM LEWISLATIOONSN ASSINGTHE AR C STRONG KYLE DAVID P NORTON SUOZZIB STEVEN AME!S STERN CAROLINE B STOLZMAN MERVE STROUD COLIN RITCHEY SULLIVAN CONNOR SUOZZO WILLIAMWILLIAM JAMES State: ______Zip/Postal Code: ______STERN ISAAC STONE ADAM WOODROW STRUMEIER BENJAMIN STEADMAN SURAEVA ELENA STERN RENEE GABRIELLA STORMS DANIEL COOPER STSERYNZAT KATSIARYNA SULLIVAN DANIEL FRANCIS SURAN EMILY JEAN STERNLIEB JAYCEE ELISE STOARY JASMLEINE NADIXYAH ANDRSTUBBOBOLOLO VICICITOT OARIA . STSULLRIVANA DANANIELIELLULE SS SURESH SARANYA STETSYNA MARIYA STOSTOTZERTZER THEOTHEODODORERE ROBERT ELIZABETH BRITTANY SUSSKIND NOAH GATES STEVENS TAYLOR STILWELL STRACIEACIERRI LUCCIIANANA STUBBS HOLLY SULLIVAN JAMES PAUAUL SUSSMAN HIHILLLELLEL EMANUEL STEWART ISAAC JAMES STRANGE BRIANNA JOAN STUCKEY SAMUEL ADAMS SULLIVAN LAURA ELIZABETH SUSUNI OLGA STEWART KIMBERLY SARA STRATOULY NICHOLAS STUMPF ANASTASIA M SULLIVAN RACHEL ANNE SUTKUS TAUTVYDAS Reprinted with permission from the October 28, 2015 edition of the NEW YORK LAW JOURNAL © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected]. # 070-11-15-26 Phone: ______E-mail: ______

Size: 14î x 11.5î BILLING INFORMATION (If Different) ______RATE: $195 ______PLAQUE SPECIFICATIONS: Attn: ______Give Your Clients a Gift with 1. Mahogany Wood Tone Real Value. 2. Gold Trim/Beveled Edges Quantity: ______Rate Per : $195 3. Glossy Finish Total (Plus applicable tax): $ ______Grant your clients unlimited access to

award-winning legal news coverage with an Authorizing Signature: ALM Gift Subscription. ______1 PAYMENT:

2 r Visa r MasterCard r American Express

Get Started Card No. ______3 Visit at.law.com/gift Exp. ______

Cardholder’s Signature: ______

*There is an applicable cancellation fee after your customized plaque has been produced. CUSTOMIZATION: NewYorkLawJournal.com Please print the name exactly as it should appear ______10 | Wednesday, May 1, 2019 | nylj.com

tioned to lead on these issues and coverage can influence public judiciary and undermine public take issue with any media cov- DiFiore work productively with schools perceptions. For example, when confidence in the impartiality of Miller erage. But it is unfair and deeply and the media than the Bar and reporting on high-profile appel- judges. Our legal profession is dangerous to question without a « Continued from page 7 Bench. Together, we can and must late rulings and trials, the media’s challenged to consider what we « Continued from page 9 modicum of evidence the integ- authority and influence future develop concrete, implementable tendency to routinely identify the should be doing to promote an tion in China, Mao declared, “The rity of the news media simply for decisions. strategies to remind the Ameri- judges’ political party affiliations informed electorate that under- social forces and groups which criticizing or challenging political I am encouraged by the fact can public of how and why our or to label them as “Obama” or stands the value of judicial inde- resist the socialist revolution and leaders. that Hank Greenberg, New York rights and freedoms are depen- “Bush” judges further politicizes pendence and the rule of law. As are hostile to or sabotage social- Democracy is fragile. President State Bar Association President- dent on an independent judicia- the adjudicative function in the lawyers who swore an oath to ist construction are all enemies Ronald Reagan warned: “Freedom Elect, shares my concerns, and ry and a free and independent public eye and diminishes con- uphold the Constitution, it is up to of the people.” is never more than one genera- we have committed to bring the press. fidence in the impartiality and us, individually and collectively, It is frightening that our Pres- tion away from extinction. We Bench and Bar together to collab- We need simple and direct mes- independence of judges. to speak out against corrosive ident regularly uses language didn’t pass it to our children orate on strategies and programs sages like the one I read recently On this Law Day devoted to attacks on the judiciary. And, from the tyrants’ lexicon. Law- in the bloodstream. It must be to advance public education on where a three-legged stool was freedom of speech and press, we just as important, it is up to us to ful investigations are described fought for, protected, and handed the rule of law. Living as we do in used to describe the unique find the rule of law under pressure assume a broader leadership role as “witch hunts.” Immigrants are on for them to do the same.” the Internet age of snapshots and design and stability of our system in many ways, from the rapidly in working with the media and our called vermin. African-Ameri- During the Revolutionary War, soundbites, communicating the of government, including what changing means by which we con- schools to make sure that every can individuals and others are nearly 250 years ago, Thomas practical importance of complex would happen to the structure if sume information and express our American understands that we referred to as dogs. He proposes Paine wrote, “The times have implicit norms like “checks and one or both of the executive and views in the age of the Internet cannot have a free society without regulation—i.e., censorship—of found us.” The times also found balances” will not be an easy task, legislative branches decided to to the decline in civic knowl- an impartial and independent judi- Facebook and Twitter. He even to preserve but we truly believe that no ele- kick out the third leg. We also need edge among our citizenry to the ciary or a free and independent rails against political satire that our nation, and the times found ment of our society is better posi- to sensitize the media on how its noxious efforts to politicize the press. targets him and has called on Franklin Delano Roosevelt to save the Federal Communications the free world from tyranny. Now, Commission to investigate NBC the times have found us to honor because he doesn’t like skits our oath to the Constitution and 22 N.Y.3d at 307. As Chief Judge her confidential sources, in clear New York legislature [and] the on Saturday Night Live in which protect America, its values and Acosta Kaye eloquently noted: violation of the absolute protection New York courts … would quickly he and his administration are its vital institutions. This State, a cultural center against such disclosure embodied act to protect the press because lampooned. We dare not sit idly by on the « Continued from page 8 for the Nation, has long pro- in the Shield Law. Id. at 139. The that’s what we do in New York.”12 Americans have not seen such sidelines as witnesses to the statements. Despite this instruc- vided a hospitable climate Court of Appeals agreed with our Our sister states may not be so an assault on the truth and free erosion of public confidence in tion, Zenger was acquitted. Crown for the free exchange of ideas dissent: “[P]rotection of the ano- quick to act, or may not act at all. expression since the McCarthy the fundamental institutions of v. John Peter Zenger, Historical Soci- (Matter of Beach v. Shanley, 62 nymity of confidential sources is a Therefore, in light of the growing era in the 1950s. In today’s digi- democracy and freedom. The ety of the New York Courts; see also N.Y.2d 241, 255-256 [Wachtler, core—if not the central—concern threats to journalistic freedom in tal age, an avalanche of baseless oath that each of us took to pro- Beach v. Shanley, 62 N.Y.2d 241, 255 J., concurring]). That tradition underlying New York’s journalist the United States and abroad, the claims and insults are tweeted by tect and defend the Constitution (1984) (Wachtler, J. concurring). is embodied in the free speech privilege, with roots that can be vital importance of continuing New the President and repeated over of the United States gives us a Thereafter, “New York became a guarantee of the New York traced back to the inception of the York’s tradition of protecting free- and over in the social media echo- special obligation. hospitable environment for jour- State Constitution, beginning press in New York.” 22 N.Y.3d at dom of the press is as clear today chamber. Through social media Without a free press, there is nalists and other purveyors of the with the ringing declaration 316. The Court further noted that as it has ever been. campaigns, there have been no free society. We must protect written word.” Holmes, 22 N.Y.3d that ‘every citizen may freely requiring a reporter to wait until serious attacks on the essential the freedom of the press, what •••••••••••••• •••••••••••••• at 307. In 1803, Harry Croswell was speak, write and publish … she was on the witness stand to • institutions of our government, George Mason referred to in 1776 convicted of libel for publishing an sentiments on all subjects.’ assert her claim of privilege “can 1. Madison Speech in the House of Repre- and real damage has been done to as “one of the greatest bulwarks sentatives, 1789, Library of Congress. article critical of President Thomas (NY Const, art I, §8.) Those itself be viewed as a significant 2. Peter Baker, Trump Bars CNN’s Jim the public’s confidence in these of liberty.” The ideals enunciated Jefferson and others. People v. Cro- words, unchanged since the incursion into the press autonomy Acosta From the White House, NY Times institutions. in our Constitution and Bill of swell, 3 Johns. Cas. 337 (1804); see adoption of the constitutional recognized in article I, §8 and the (Feb. 17, 2018). I am by no means suggesting Rights have made America great. 3. Julia Ainsley, U.S. Officials Made List also People v. Santiago, 185 Misc.2d provision in 1821, reflect the Shield Law.” Id. at 319. of Reporters, Lawyers, Activists to Question that we cannot or should not Our duty is to keep it so. 138, 147-50 (Monroe County Ct deliberate choice of the New Finally, a key component of a at Border, NBCNEWS.com (March 6, 2019). 2000). On appeal to the New York free press emanating from federal 4. Peter Baker and Eric Schmitt, Trump York State Constitutional Con- Defies Congressional Deadline on Khashog- Supreme Court of Judicature, Alex- vention not to follow the lan- jurisprudence is the “actual mal- gi Report, NY Times, (Feb. 8, 2019). ander Hamilton was “in the room guage of the First Amendment, ice” standard established in New 5. Michael M. Grynbaum, Trump Renews landmark free speech case, New where it happen[ed],”8 represent- York Times v. Sullivan, 376 U.S. 254 Pledge to ‘Take a Strong Look’ at Libel Laws, York Times Co. v. Sullivan. That ratified 30 years earlier, but NY Times (Jan. 10, 2018). Garry ing Croswell. Hamilton argued instead to set forth our basic (1964). Sullivan held that in order 6. The full text of article I, §8 reads: “Ev- decision was rendered “against that the defendant should have democratic ideal of liberty of to prevail on a defamation claim, ery citizen may freely speak, write and pub- « Continued from page 8 the background of a profound government officials and other lish his or her sentiments on all subjects, national commitment to the prin- been allowed to offer evidence the press in strong affirmative being responsible for the abuse of that at 17-18. These principles were of the truth of the publication in terms. public figures must prove that the right; and no law shall be passed to restrain also later incorporated into the ciple that debate on public issues his defense. That argument was statement in question was “know- or abridge the liberty of speech or of the New York State Constitution at should be uninhibited, robust, press. In all criminal prosecutions or indict- rejected by a divided Court and Immuno AG, 77 N.Y.2d at 249. ingly false” or made with “reckless ments for libels, the truth may be given in Article 1, Section 8. and wide-open, and that it may the conviction stood.9 One year The Court of Appeals reaffirmed disregard” for its accuracy. Id. at evidence to the jury; and if it shall appear This bit of history not only well include vehement, caustic, later, however, New York enacted the preeminence of New York’s 279-81. As referenced above, Jus- to the jury that the matter charged as libel- reveals a significant moment and sometimes unpleasantly ous is true, and was published with good legislation providing that truth is a free speech protections in Mat- tice Thomas recently issued a motives and for justifiable ends, the party that took place in our state sharp attacks on government defense to libel “where published ter of Holmes v. Winter, 22 N.Y.3d lengthy concurrence to a denial of shall be acquitted; and the jury shall have courts, but also demonstrates, and public officials.” 376 U.S. with good motive and for justifi- 300 (2013). In that case, Colorado certiorari in which he argued that the right to determine the law and the fact.” in context, the evolution of our 254, 270 (1964). 10 7. The Shield Law was amended in 1990 able ends.” This same language police who investigated the mass the Court “in an appropriate case” (Civil Rights Law §79-h[c]) to codify the nation’s attitudes and our move- As the law has developed, we was included in article I, §8 of New shooting in an Aurora, Colo. movie should reconsider Sullivan and its Court of Appeals’ holding in O’Neill, 71 ment toward greater protections can see the thread of Hamilton’s York’s Constitution when it was theater were suspected of having progeny. McKee v. Cosby, 586 U.S. N.Y.2d 521, which recognized that article afforded to speech and press. It argument in Croswell weaving I, §8 provides reporters with a “qualified 11 adopted in 1821. leaked information about the case __ (2019) (Thomas, J. concurring). privilege” against compelled disclosure bears noting that Hamilton’s through First Amendment juris- The inclusion of article I, §8 in to a New York reporter, in violation After analyzing the status of libel of “nonconfidential news” (see Matter of argument in defending Croswell prudence. He contended that Holmes v. Winter, 22 N.Y.3d 300, 308 (2013). the New York Constitution was of of a pre-trial publicity order. The laws in the 18th and 19th centu- 8. Lin-Manuel Miranda, The Room Where was NOT a full-throated endorse- evidence of the truth should particular significance when one defendant in Colorado subpoenaed ries, Justice Thomas observed that It Happens, Hamilton the Musical, Act 2 ment of truth as an absolute be admissible with respect to considers that it wasn’t until 1925, the reporter under a Colorado law there was “little historical evidence (2015). defense in a libel prosecution. intent and that both truth and 9. “The Court was deadlocked because in Gitlow v. New York, 268 U.S. 652, providing for out-of-state witnesses suggesting that the … actual-malice the ‘fifth’ judge, , had de- Hamilton sought only to allow intent should be determined by 666 (1925), that the U.S. Supreme to appear in criminal proceedings. rule flows from the original under- ferred his judicial appointment to the New the jury to consider the truth the jury. In New York Times Co. Court endorsed the concept that The New York trial court ruled standing of the First or Fourteenth York Supreme Court of Judicature during its or falsity of the published state- v. Sullivan, the Supreme Court pendency of this case so that he could con- the First Amendment, through the that the reporter was required to Amendment.” Id. He concluded by tinue to represent the People. In these cir- ments “as a means to determine would ultimately place intent at doctrine of incorporation by way of appear in Colorado. On appeal, noting that “[t]he States are per- cumstances, the prosecutor was entitled to the intent” of the publication. the center of a civil libel cause of the Fourteenth Amendment, could the majority of a First Department fectly capable of striking an accept- move for judgment on the verdict, but the People v. Croswell, 3 Johns action and shield news organiza- motion was not made.” People v. Croswell, apply to the states. panel affirmed, holding that the able balance between encouraging Historical Society of the New York Courts. Cas at 357; see also McGrath tions from liability for statements Following Gitlow, the First reporter could raise any claim of robust public discourse and pro- 10. N.Y. Sess. Laws ch. 90, §2 (1805); at 15. Although he defended a about public officials—even if the viding a meaningful remedy for People v. Croswell, Historical Society of the statements are inadvertently Amendment establishes the floor privilege in the Colorado proceed- New York Courts. The burden now rests free press, Hamilton reportedly for free speech and press protec- ing. 110 A.D.3d 134 (2013). Justice reputational harm.” Id. with the plaintiff in a defamation case to rebuked “the novel, the vision- inaccurate—as long as they did tions in New York, but not the Saxe and I dissented, reasoning New York has a long tradition of prove falsity. See generally Immuno AG, 77 ary, the pestilential doctrine of not act with actual malice. In a N.Y.2d 235. ceiling. Notably, “the drafters [of that the reporter should not be striking that balance in support of 11. See full text of article I, §8, supra. an unchecked press.” People v. landmark case on criminal libel, article I, §8] chose not to model our compelled to appear in the Colo- a free press, but not all states share 12. Tony Mauro, Justice Clarence Thom- Croswell, 3 Johns Cas at 353 (Sup. the Supreme Court would note provision after the First Amend- rado proceeding, because the sole that tradition. So, it is possible as Stirs Up a First Amendment Squabble Ct. 1804). We therefore recall that “the ‘good motives’ restric- Over Libel Law, NYLJ (March 29, 2019) ment, deciding instead to adopt purpose of compelling her testi- that, if Sullivan were overturned (quoting First Amendment litigator Kather- that the common law concept tion incorporated in many state more expansive language.” Holmes, mony was to seek disclosure of by the U.S. Supreme Court, “the ine Bolger). of a “free press” was very dif- constitutions and statutes to ferent from that which we now reflect Alexander Hamilton’s embrace as a critical corner- unsuccessfully urged formula stone of our free society. Around in People v. Croswell liberalized ing of the —what we are working implementing, to improve the deliv- ans’ problems and provide services the time of Croswell’s trial, press the common-law rule denying any Marks on, what we have accomplished ery of justice. and programs; and, attention to the freedom referred to publication defense for truth.” Garrison v. and where we need to improve. Of course, the court system can inequities of our bail system, which free from licensure by the gov- State of La., 379 U.S. 64, 72 (1964) « Continued from page 7 In addition, the annual report on also take inspiration from the press. has led to the courts’ greater use ernment, or prior restraint, but (internal citations omitted). and archives appellate arguments the Chief Judge’s Excellence Initia- The press has been instrumental in of alternatives to monetary bail, clearly did not include a broad Looking forward, now as in on their respective webpages for tive and the Annual Report of the identifying problems in the justice better ensuring that those who freedom from official interven- the past, our nation’s continuing public viewing. Additionally, in New Chief Administrator of the Courts system, motivating the courts to stand accused of a crime are not tion—or even criminal prosecu- progress and resilience clearly York City and many courts outside further detail programs, initiatives develop new approaches and meth- detained pretrial due to a lack of tion—after the fact. See McGrath depend upon leaders in all three of the City, photography and audio/ and services we offer to provide ods to adjudicate cases. Examples economic means. at 9; David Jenkins, “The Sedition branches of government playing video recording by accredited the highest quality of justice. We include: reporting on the ravages These are just a few examples of Act of 1798 and the Incorpora- their critical parts, with good members of the media are allowed owe the public a fair and accurate of the opioid epidemic, which how the press has helped to prod tion of Seditious Libel into First faith and necessary sacrifice of in common, non-courtroom areas reporting of what we do, and these spurred establishment of special- the Unified Court System to strive Amendment Jurisprudence,” 45 self-interest, to preserve our con- of the courthouse, as long as such publications better ensure that ized courts to help address this for excellence and provide a higher Am. J. Legal Hist. 154, 161 (2001), stitutional norms. It further relies coverage does not undermine the goal is achieved. crisis; highlighting that New York quality of justice. With the utmost quoting Blackstone’s Commen- upon the zealous advocacy of safety and security of the public, Complementing its reporting on was one of only two states in the regard to our obligation of trans- taries on the Laws of England. attorneys and diligent service of the litigants or court staff. the operations of the courts, the nation that set the age of criminal parency to the public, we recognize In revisiting this history, we are judges who uphold our law. Most In addition to the work of our news media have an important role responsibility at 16, which resulted that an active and aggressive press reminded that even our most fun- importantly, our freedom and our Public Information Office, we seek in promoting improvement and in the Unified Court System taking a helps to ensure a better system of damental principles and closely- good government depend upon to promote transparency through reform of the justice system. The lead role in promoting legislation to justice. Fully cognizant of that, the held freedoms have evolved over an engaged—and well-informed— events such as the Chief Judge’s press can be an invaluable vehicle remedy this problematic anomaly; Unified Court System is committed time. 160 years after Croswell, the public, whom we in government annual State of Our Judiciary for court leaders to speak directly coverage of the plight of veterans to assisting the press in all ways Supreme Court would decide the have pledged to serve. address. The State of Our Judiciary to the public, explaining new ideas in the justice system, which led to possible—even when it is critical of is our primary opportunity to pro- and programs and innovations we creation of veterans’ courts that our operations—and to achieving vide the public with an account- are implementing, or considering provide greater sensitivity to veter- the highest level of transparency. is neither new nor a result of Whalen technology. The Founders in fact anticipated both this result order to enhance and elevate the members of the public have the York statute, “all agency records « Continued from page 9 and the problems arising from Scheinkman public discourse, to shed light in time to engage in regular court- are presumptively available for lize in person locally, nationally, this division. “A zeal for differ- the darkness that sometimes sur- watching, they have the right to public inspection and copying,” and globally. What begins as an ent opinions … ; an attachment « Continued from page 8 rounds us, and help us discern do so and have the right to have and “the burden rest[s] on the online thought becomes hun- to different leaders … ; or to per- of actual malice. See New York truth from falsity. In addition to the media sit in and report on the agency to demonstrate that the dreds of thousands assembling sons of other descriptions whose Times Co. v. Sullivan, 376 U.S. 254 safeguarding the vital role played proceedings for them. Chief Judge requested material indeed quali- to petition shared grievances fortunes have been interesting (1964). Though the relative free- by the press, the judiciary should Janet DiFiore’s Excellence Initia- fies for exemption.” Hanig v. State against the government—such to the human passions, have, in dom to defame may, at times, result ensure that its own functions, and tive has, as its ultimate objective, Dept. of Motor Vehicles, 79 N.Y.2.d as the Women’s March on Wash- turn, divided mankind into par- in unfair and uncompensated hurt those of the other branches of gov- the goal of informing the public 106, 109 (1992). The New York stat- ington and its simultaneous sat- ties, inflamed them with mutual and injury to cherished and valued ernment, are, to the greatest extent as to the work of the courts and ute includes a legislative declara- ellite marches throughout the animosity, and rendered them reputations, so much so that this feasible, open and transparent, where it has been improved and tion stating, among other things, nation. This grass roots method much more disposed to vex and principle is now subject to sig- to maximize citizens’ knowledge where improvement is needed. that “a free society is maintained of political and social engage- oppress each other than to co- nificant criticism by at least one of, and confidence in, the insti- This self-reporting is essential when government is responsive ment is far from new. We have operate for their common good.” holder of high office, the Supreme tutions of their government. For to public confidence, trust, and and responsible to the public, and simply replaced a bullhorn with a James Madison, Federalist No. Court has accorded broad protec- example, the U.S. Supreme Court accountability. when the public is aware of govern- hashtag and a physical flyer with 10. The fix, of course, is not to tion to the press in fulfilling its vital held in Richmond Newspapers v. In 1966, Congress contributed to mental actions … . The legislature a digital post. inhibit the dissenting or differing role, because “First Amendment Virginia, 448 U.S. 555 (1980) that the cause of transparency by enact- therefore declares that government This is not to say that online viewpoints that create factions freedoms need breathing space to the public and the press have a ing the Freedom of Information Act is the public’s business and that assembly does not have its within our society, inasmuch survive.” NAACP v. Button, 371 U.S. First Amendment right of access (5 U.S.C. 552), which requires fed- the public, individually and collec- dangers. The practical real- as this erosion of liberty would 415, 433 (1963). Our constitution- to criminal trials. This holding was eral agencies to make information tively and represented by a free ity of the Internet is that it can “be worse than the disease.” Id. ally expressed freedoms are just premised on the proposition that available to the public. This statute press, should have access to the divide, rather than unite, when Instead, an essential element pretty words on a page without “‘a major purpose of [the First] calls for broad disclosure, and the records of government in accor- users interact in only self-created of our republican government the judiciary to enforce them. To Amendment was to protect the statutory exemptions from disclo- dance with the provisions of this echo chambers that parrot their is the need to ensure that the that end, we need to take great free discussion of governmental sure are construed narrowly. See article.” Public Officers Law §84. existent views back to them. The voice of the majority does not care in order to foster, not stifle, affairs,’” and mandating public Milner v. Department of Navy, 562 Our ability to govern ourselves constant flow of new information, silence the rights of the minor- public access to governmental access to criminal trials would U.S. 562, 571 (2011). The New York is increasingly dependent upon colored by a poster’s own per- ity. James Madison, Federalist information. While there may be ensure that such discussion “is Legislature followed suit in 1977 a free and engaged media that ception or outright disinforma- No. 51. Through the exercise of principled reasons to withhold cer- an informed one.” Globe Newspa- by enacting the Freedom of Infor- provides, tests, and synthesizes tion, can undermine attempts at the right to assembly, now sup- tain, narrow kinds of information per Co. v. Superior Court for Nor- mation Law (Public Officers Law information. This right to informa- reasoned deliberation and allow ported by our increased ability from the public, either temporarily folk County, 457 U.S. 596, 604, 605 §§84 et seq.), which imposes upon tion, and the ability of the press to debate to devolve into meaning- to connect and understand, the or permanently, in the main, we (1982), quoting Mills v. Alabama, state and local agencies disclosure perform these essential functions, less adherence to a party line. voices of the marginalized and are all better served by encourag- 384 U.S. 214, 218 (1966). While it requirements similar to those of must be protected and nurtured if This potential for people to disenfranchised are amplified, ing the free flow of information in may be unrealistic to expect that the federal statute. Under the New democracy is to survive. divide into factions, however, and our nation is stronger for it.