A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | SUMMER 2019 Federal Prosecutors Charge Julian Assange With Seventeen Counts Under the Espionage Act, Prompting Renewed Concern for Journalists n May 23, 2019, several media outlets reported that Following Assange’s arrest by British offi cials, U.S. the U.S. Department of Justice (DOJ) had released prosecutors unsealed charges of conspiracy to “access a an indictment alleging 17 additional charges against [government] computer without authorization” under the WikiLeaks founder Julian Assange, all of which Computer Fraud and Abuse Act (CFAA). 18 U.S.C. § 1030. The were under the Espionage Act, 18 U.S.C. § 793. charges alleged that Assange assisted Manning in cracking a OThe charges prompted signifi cant concern from journalists password to gain access to the classifi ed documents published and press advocates that the indictment was the next step in by WikiLeaks. The indictment was fi led on March 6, 2018 in the prosecuting traditional journalists under the statute. Meanwhile, U.S. District Court for the Eastern District of Virginia and was on July 30, 2019, a federal judge dismissed a lawsuit fi led by the kept secret until prosecutors mistakenly mentioned charges in Democratic National Committee (DNC) against WikiLeaks and an unrelated case’s court fi lings. Assange, fi nding that their publication of stolen DNC emails and Following the charges under the CFAA, some observers documents was protected by the First Amendment. attempted to differentiate Assange from traditional journalists. WikiLeaks gained notoriety in 2010 after publishing thousands David A. Schulz, a First Amendment lawyer who advised The of classifi ed U.S. military documents on its website, including Guardian when it published documents leaked by Edward a video from a U.S. military helicopter as it shot and killed Snowden, told Vice News on April 11, “If you break into a Reuters photographer in Baghdad in July 2007, as well as someone’s home to get information, you don’t have legal operating manuals for the Guantanamo Bay prison. (For more protection under the guise of sharing the news.” (Schulz background on WikiLeaks, see “WikiLeaks’ Document Dump delivered the 29th Annual Silha Lecture, titled “See No Evil: Sparks Debate” in the summer 2010 issue of the Silha Bulletin.) Why We Need a New Approach to Government Transparency” On Aug. 21, 2013, then Army Pvt. Bradley Manning was on Oct. 16, 2014. For more information on the lecture, see “29th sentenced to 35 years in prison for violating the Espionage Act. Annual Silha Lecture Examines the Right to Access Government On Jan. 17, 2017, then President Barack Obama commuted Information in the Wake of National Security and Privacy Manning’s sentence to seven years. In 2013, Manning publicly Concerns” in the Fall 2014 issue of the Silha Bulletin.) announced she is a transgender woman and changed her name However, other observers still expressed concern. In an to Chelsea. (For more information on Manning, see “President article for Harper magazine’s April issue, James Goodale, Obama Commutes Chelsea Manning’s Sentence, Pardons Gen. former defense counsel for The New York Times in New York James E. Cartwright, Takes No Action on Edward Snowden” in Times v. United States , 403 U.S. 713 (1971), which arose after the Winter/Spring 2017 issue of the Silha Bulletin and “Manning the Times published excerpts from the Pentagon Papers, Sentenced to 35 Years in Prison for Leaks” in the Winter/Spring highlighted how investigative reporters often obtain classifi ed 2015 issue.) information through a process of encouraging sources and On April 11, 2019, British police arrested Assange after helping them remain anonymous. If they are no longer allowed to Ecuador’s President Lenin Moreno revoked political asylum use such techniques, Goodale asserted, “investigative reporting and evicted Assange for “repeated violations [of] international based on classifi ed information will be given a near death conventions and daily life protocols.” Assange had been granted blow.” In an April 12 op ed for The Hill, Goodale added, “Can diplomatic asylum in the Ecuadorian embassy in 2012 after a journalist instruct his source in a manner which will permit losing an appeal against extradition to Sweden, where he faced the source to escape identifi cation? The answer is, generally two sexual assault allegations. Assange was also found guilty speaking, yes — but whether it applies to news gathering in the in Westminster Magistrates’ Court of breaching his 2012 bail Digital Age, using the computer, will be the question in this case.” conditions. On May 1, 2019, he was sentenced to 50 weeks in (Goodale was the 2013 Silha lecturer. For more information prison on the breached bail charges, and on July 18, he dropped on the lecture titled “The Lessons of the Pentagon Papers: Has his appeal against the jail term. Obama Learned Them?,” see “Silha Lecturer Links Pentagon
Assange, continued on page 3 Inside This Issue Summer 2019: Volume 24, No. 3
1 Federal Prosecutors Charge Julian Assange With Seventeen 33 Minnesota Supreme Court, Sixth Circuit, and Eastern Counts Under the Espionage Act, Prompting Renewed District of Kentucky Rule in Notable Defamation Cases Concern for Journalists Defamation Cover Story 40 Judge Allows Media and Public to Make Copies of Evidence 6 Police Raid Freelance Journalist’s Home and Offi ce, from Trial of Former Minneapolis Police Offi cer, Restricts Prompting Criticism and Legal Action Live Streaming of Noor Sentencing Hearing Searches and Seizures Access
10 Second Circuit Rules President Trump Violated the First 43 U.S. Customs and Border Protection Continues to Raise Amendment By Blocking Twitter Users Privacy Issues Amid Data Breach, Searches and Seizures of First Amendment Electronic Devices Searches and Seizures 12 White House Revokes and Suspends Hard Press Passes Under New Rules 47 The New York Times Discontinues Editorial Cartoons in Its Access International Edition; Canadian Publisher Ends Contract with Editorial Cartoonist 15 FTC Reaches $5 Billion Settlement with Facebook, Editorial Control Prompting Praise and Criticism Data Privacy 50 Federal Judge Rules Controversial Undercover Video Maker Protected from Certain Damages by First Amendment 18 Debates Continue Over a Federal Data Privacy Law or First Amendment Framework Data Privacy 52 Attorney Kelli L. Sager to Deliver 34th Annual Silha Lecture: “In Defense of Public Trials: Access to Court 23 Supreme Court Rulings Address First Amendment and FOIA Proceedings in the Internet Age” Questions Silha Center Events Supreme Court News
30 Former Supreme Court Justice John Paul Stevens Passes Away; Authored Notable First Amendment Majority and Dissenting Opinions Supreme Court News
This is the fi rst issue of the Silha Bulletin to be posted online only. The Bulletin will continue to be published three times a year: late fall, late spring, and late summer. It will be available at: www.silha.umn.edu and the University of Minnesota Digital Conservancy at: http://conservancy.umn.edu/discover?query=Silha+Bulletin. If you would like to be notifi ed when a new issue of the Silha Bulletin has been published online, or receive an electronic copy of the Bulletin, please email us at [email protected]. Please include “Silha Bulletin” in the subject line. You may also call the Silha Center at (612) 625 3421.
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
SARAH W ILEY ERIC A RCH SILHA R ESEARCH A SSISTANT SILHA R ESEARCH A SSISTANT
ELAINE H ARGROVE SILHA C ENTER S TAFF
2 Assange, continued from page 1 Finally, the indictment alleged 17 counts under the Espionage Papers and Obama Administration’s Treatment of Linkers” in the Act, including multiple counts of “Conspiracy to Obtain, Receive, Fall 2013 issue of the Silha Bulletin.) and Disclose National Defense Information,” “Unauthorized In an April 11 interview with the HuffPost, Silha Center Obtaining and Receiving of National Defense Information,” and Director and Silha Professor of Media Ethics and Law Jane “Unauthorized Disclosure of National Defense Information.” The Kirtley warned that the CFAA charges could be an “incremental 18th count against Assange in the indictment was the original step” towards charging journalists under the Espionage Act. (For charge under the CFAA. The full indictment is available online at: more information on the arrest of Assange and indictment under https://assets.documentcloud.org/documents/6024848/5 23 19 US the CFAA, see “WikiLeaks Founder Julian Assange Arrested Assange Superseding Indictment.pdf. on Computer Hacking Charges, Fueling Concerns Over Press According to Vice News on May 24, 2019, Assange remained Freedom” in the Winter/Spring 2019 issue of the Silha Bulletin.) in a high security prison in London, noting that on May 13, On May 23, 2019, U.S. prosecutors announced 17 additional Swedish authorities had reopened its investigation into sexual charges against Assange under the Espionage Act. The 37 page assault accusations against Assange and wanted him extradited indictment fi led in the Eastern District of Virginia fi rst argued to Sweden. As the Bulletin went to press, it was unclear whether that Assange and WikiLeaks had “repeatedly sought, obtained, Assange would be extradited to the United States or Sweden, or and disseminated information that the United States classifi ed remain in the United Kingdom (UK). due to the serious risk that unauthorized Following the release of the Espionage Act charges against disclosure could harm the national Assange, several media law experts expressed deep concern COVER STORY security of the United States.” The regarding the DOJ’s indictment. In a May 24 interview with indictment further asserted that Assange HuffPost, Kirtley said, “This is serious.. . . Everybody in the “encourage[d] [sources] with access news business and frankly everybody who is a consumer of to protected information, including classifi ed information, to information needs to be paying attention to this.” She continued, provide it to WikiLeaks for public disclosure.” One way Assange “Whatever happens to Julian Assange could potentially did so, according to the indictment, was creating a “Most happen to any journalist, anywhere — including someone who Wanted Leaks of 2009” list, which sought documents that were the government would acknowledge has a more traditional “likely to have political, diplomatic, ethical or historical impact journalistic role.” on release . . . and be plausibly obtainable to a well motivated Kirtley added in a May 24 interview with Vice News that insider or outsider.” the DOJ “upped the ante now.” She argued that although the Second, the indictment contended that Manning had government had been “dancing around this issue for many responded to Assange’s “solicitation,” namely the “Most Wanted years,” the selection of Assange “is a very deliberate step by the Leaks” list, in disclosing the classifi ed military documents to administration.” WikiLeaks in 2010. Third, the indictment alleged that Assange Jameel Jaffer, director of the Knight First Amendment had continued to “encourage Manning to steal classifi ed Institute at Columbia University (Knight Institute) told documents from the United States and unlawfully disclose that Vice News , “I don’t think there’s any way to understand this information to WikiLeaks.” The indictment then contended, like indictment except as a frontal attack on press freedom.” the charges under the CFAA, that Assange had “agreed to assist Jonathan Peters, a media law professor at the University of Manning in cracking a password hash stored on United States Georgia, agreed, calling the charges under the Espionage Act a Department of Defense [(DOD)] computers connected to the “fi ve alarm fi re for the First Amendment.” Secret Internet Protocol Network, a United States government Several observers also discussed the implications of Assange network used for classifi ed documents and communications.” potentially being defi ned or characterized as a journalist. The The indictment added that because Assange had assisted HuffPost noted that Assange’s legal team would likely argue Manning in creating the password, he “knowingly receiv[ed] that he “fulfi lled a press like role in disseminating the Manning such classifi ed records from Manning for the purpose of publicly documents” and would “base their defense around First disclosing them on the WikiLeaks website.” Amendment issues and press freedom.” The HuffPost added that Fourth, the indictment argued that Assange, WikiLeaks and its since 1917, when the Espionage Act was passed, no journalist affi liates, and Manning had “shared the objective . . . to subvert had been charged under the statute. lawful measures imposed by the United States government to Kirtley explained in a May 23 interview with CNN Business safeguard and secure classifi ed information, in order to disclose that it is a “dangerous question” to ask whether a request for that information to the public and inspire others with access to tips constitutes “solicitation” because it could implicate news do the same.” The indictment further argued that, in doing so, outlets that have tip lines or encrypted messaging systems. Assange had published the names of the U.S. military’s “human “In traditional legal principles governing the way the press sources,” including “local Afghans and Iraqis who had provided obtains information like this is that, if it’s dropped in your lap, information to U.S. and coalition forces,” as well as “persons you’re free to publish,” Kirtley said. “But lots of websites have throughout the world who provided information to the U.S. tip solicitations. Is that kind of solicitation now going to be government in circumstances in which they could reasonably deemed [equal] to what Assange did?” She added, “That’s a very expect that their identities would be kept confi dential,” including dangerous line to draw. I don’t like government deciding who journalists. journalists are or what journalism is.” The indictment claimed that by publishing the names, Assange Peters similarly argued that President Donald Trump’s knowingly “created a grave and imminent risk that the innocent administration “has no credibility to decide who’s a journalist.” people he named would suffer serious physical harm and/or In a May 23 statement, Washington Post executive editor arbitrary detention.” The indictment further claimed that during Marty Baron said, “The [Trump] administration has gone the U.S. armed forces’ 2011 raid of the compound of Osama from denigrating journalists as ‘enemies of the people’ to now bin Laden in Abbottabad, Pakistan, they collected items such criminalizing common practices in journalism that have long as “Department of State information provided by Manning to served the public interest.” WikiLeaks and released by WikiLeaks.” Assange, continued on page 4 3 Assange, continued from page 3 the organization was deliberately “render any journalist who publishes trying to infl uence the U.S. presidential an article based on stolen information Reporters Committee for Freedom election. Additionally, several of the a coconspirator in the theft.” He added of the Press (RCFP) executive director emails contained information that that “[t]his was not a solicitation to steal Bruce Brown said in a May 23 statement was embarrassing to Democratic documents but a request for material that that “irrespective of the Justice presidential candidate Hillary Clinton’s had been stolen. Journalists are allowed Department’s assertion that Assange is not campaign and the DNC. The DNC sued to request documents that have been a journalist,” any “government use of the WikiLeaks and Assange under the stolen and to publish those documents.” Espionage Act to criminalize the receipt CFAA, the Stored Communications Act, Koeltl also rejected the DNC’s claim and publication of classifi ed information 18 U.S.C. §§ 2510 22, and several other that the publishers had violated trade poses a dire threat to journalists seeking federal and state statutes. secrets laws. Again citing Bartnicki, to publish such information in the public (For more information about the DNC Koeltl explained that the Supreme Court interest.” hacks and lawsuit, see U.S. Government “did not say that its holding ‘did not Dean Baquet, executive editor of Offi cials Push Back Against WikiLeaks, permit’ the disclosure of trade secrets.” The New York Times, echoed Brown’s Announce Intentions to Arrest Assange Instead, according to Koeltl, the Court assertion, contending in a statement that in “WikiLeaks Publishes Documents recognized that important privacy “[o]btaining and publishing information Revealing CIA Hacking Tools, Faces interests are served by the Electronic that the government would prefer Government Blowback” in the Winter/ Communications Privacy Act, 18 U.S.C. to keep secret is vital to journalism Spring 2017 issue of the Silha Bulletin § 2511(c), the federal wiretap law and democracy.” He added, “The new and Cyberattacks Target U.S. Political prohibiting any individual or organization indictment is a deeply troubling step Campaigns and Organizations During from “intentionally intercept[ing], toward giving the government greater Election Year in “Data Breaches Continue endeavor[ing] to intercept, or procur[ing] control over what Americans are allowed to Plague Social Networking Websites, any other person to intercept or endeavor to know.” Government Agencies, and News to intercept, any wire, oral, or electronic Legal scholars and journalists have Organizations” in the Summer 2016 issue.) communication,” among other provisions. previously noted the important distinction Koeltl held that the First Amendment However, the Court ultimately concluded between active participation and protected WikiLeaks and Assange, as well that it did not need to decide “whether passive reception of documents and the as several former aides and advisers to [the First Amendment interest in allowing corresponding protections granted by the President Donald Trump, from liability the publication of truthful information on First Amendment. In Bartnicki v. Vopper, for disseminating the stolen materials a matter of public concern was] strong 532 U.S. 514 (2001), the U.S. Supreme “in the same way [the First Amendment] enough to justify the application of the Court held that members of the press would preclude liability for press outlets [Electronic Communications Privacy could not be held liable for publishing that publish materials of public interest Act] to disclosures of trade secrets . . . of or broadcasting illegally obtained despite defects in the way the materials purely private concern.” information if they were not involved in were obtained so long as the disseminator Koeltl held that he did not need to its acquisition. did not participate in any wrongdoing in determine “what protection trade secrets Committee to Protect Journalists obtaining the materials in the fi rst place,” should receive in matters of purely private (CPJ) executive director Joel Simon said citing Bartnicki. He explained that the concern.” Koeltl concluded that it was in a separate May 23 statement, “The DNC did not “allege any facts to show “suffi cient for this case” to hold that the indictment of [Assange] for publishing [that WikiLeaks and Assange] participated DNC’s privacy interest in “donor lists” and classifi ed information is an attack on in the theft of the DNC’s information” and “fundraising strategies,” which it called the First Amendment and a threat to that, therefore, “the First Amendment “trade secrets,” was “insuffi cient . . . to all journalists everywhere who publish protects the publication of those stolen overcome the strong public interest in information that governments would like documents.” the publication of matters of paramount to keep secret.” He added, “Press freedom Koeltl also found that it was “irrelevant public concern.” in the United States and around the world that WikiLeaks [had] solicited the stolen Koeltl added, “[I]t is plain that the is imperiled by this prosecution.” documents from the Russian agents.” He DNC’s conclusory allegations that ‘donor Meanwhile, on July 30, 2019, U.S. reasoned that an individual is “entitled lists’ and ‘fundraising strategies’ were District Court for the Southern District of [to] publish stolen documents that the among those documents published by New York Judge John G. Koeltl dismissed publisher requested from a source so long WikiLeaks does not provide a basis a lawsuit brought by the DNC against as the publisher did not participate in the to overcome the First Amendment.” Assange and WikiLeaks, among others, theft.” Koeltl cited Jean v. Massachusetts He continued, “If Wikileaks could be including the Russian Federation (Russia). State Police, 492 F.3d, 31 (1st Cir. 2007), held liable for publishing documents He held that the First Amendment in which the U.S. Court of Appeals concerning the DNC’s political fi nancial protected WikiLeaks’ publication of DNC for the First Circuit held that the First and voter engagement strategies simply emails and documents that were obtained Amendment protected an individual because the DNC labels them ‘secret’ by Russia through unlawful hacking. who had posted a video online that was and trade secrets, then so could any During the 2016 U.S. presidential illegally recorded, even though she had newspaper or other media outlet. But election, WikiLeaks published thousands “actively collaborat[ed]” with the source that would impermissibly elevate a of emails and documents that Russian in disclosing the recording. purely private privacy interest to override hackers had stolen from the DNC Koeltl further reasoned that the the First Amendment interest in the servers. WikiLeaks published the stolen DNC’s argument that WikiLeaks could publication of matters of the highest documents on July 22, 2016, one day “be held liable for the theft as an public concern.” prior to the start of the Democratic after the fact coconspirator . . . would The full ruling is available online National Convention. Experts argued eviscerate Bartnicki” because it would at: https://www.courtlistener.com/ that WikiLeaks’ timing suggested that 4 recap/gov.uscourts.nysd.492363/gov. to dismiss. The brief explained that the the publication of a rape victim’s name uscourts.nysd.492363.266.0.pdf. As the Supreme Court “has recognized broad was protected by the First Amendment Bulletin went to press, the DNC had not protection for the publication of truthful because the information was truthful announced whether it would appeal the information of public concern” and that and lawfully obtained. The brief also ruling. the press “has relied on this protection to cited Smith v. Daily Mail Publishing In two July 30 tweets, President Trump report on major stories . . . that inform the Co ., 443 U.S. 97, 102 103 (1979), praised the ruling, calling it a “total & public and hold the powerful to account.” particularly the Court’s emphasis that complete vindication & exoneration from The brief provided the example of “state action to punish the publication of the Russian, WikiLeaks and every other the “Panama Papers,” a collection of truthful information seldom can satisfy form of HOAX perpetrated by the DNC, 11.5 million fi les, totaling 2.6 terabytes constitutional standards . . . absent a Radical Democrats and others.” of data involving offshore accounts need to further a state interest of the DNC spokesperson Xochitl Hinojosa linked to prominent fi gures and criminals highest order.” In Daily Mail, the Court pushed back against President Trump’s around the world. Beginning on April 3, held that the First Amendment protected claims in a July 30 statement. “We are still 2016, a team of over 300 journalists and the publication of the name of a juvenile reviewing the decision. At fi rst glance, 100 media partners, working under the defendant obtained lawfully through this opinion raises serious concerns about umbrella of the International Consortium routine newsgathering practices even our protections from foreign election of Investigative Journalists (ICIJ), though there was a state law against it. interference and the theft of private sifted through the documents, which Finally, the brief cited New York Times v. property to advance the interests of our revealed that more than 214,000 offshore United States, 403 U.S. 713 (1971), also enemies,” she said. “At a time when the companies were connected to people in known as the “Pentagon Papers” case. The Trump administration and Republican more than 200 countries and territories. Court held that the federal government leaders in Congress are ignoring warnings (For more information on the Panama could not enjoin the Times and the Post from the president’s own intelligence Papers, see “Special Report: Silha Center from publishing portions of the top secret offi cials about foreign interference in the Interview with Panama Papers Journalist study, despite the government’s purported 2020 election, this should be of concern to Kevin Hall” in the Winter/Spring 2018 national security interest. anyone who cares about our democracy issue of the Silha Bulletin.) The full brief is available and the sanctity of our elections.” The brief cited Bartnicki, as well as online at: https://www.rcfp.org/ Previously, on March 13, 2019, RCFP, Cox Broadcasting Corporation v. Cohn, wp content/uploads/2019/03/ the Knight Institute, and the American 420 U.S. 469, 492 (1975) and Florida DNCvRussianFederationEtAlBrief.pdf. Civil Liberties Union (ACLU) fi led an Star v. B.J.F., 491 U.S. 524, 527 (1989), in SCOTT M EMMEL amici brief supporting WikiLeaks’ motion which the Court held, in both cases, that SILHA BULLETIN E DITOR In Defense of Public Trials: Access to Court Proceedings in the Internet Age
ontroversial civil and criminal cases, such as the recent Minnesota v. Mohamed Noor trial, make public scrutiny of the courts more important than ever. Although many judges embrace new technological tools that Copen the courts to the public and press, social media has prompted others 34th to restrict the use of electronic devices in the courtroom, based annual on concerns about privacy and defendants’ fair trial rights. silha Attorney Kelli L. Sager, who represented the media in lecture the access issues that arose during the O.J. Simpson trial, will address the importance of expanding—rather than > MONDAYMONDAY, OCOCTOBERTO BE R 28,28 20201919 retracting—access rights in the digital age. Her clients include > 7:30PM media companies, journalists, filmmakers, Web publishers, > COWLES AUDITORIUM and authors. Chambers USA has ranked Sager in its top tier UNIVERSITY OF MINNESOTA of media attorneys in the country for 10 consecutive years. TWIN CITIES CAMPUS KELLI L. SAGER > FREE & OPEN TO THE PUBLIC; PARTNER, In 2019, she was named First Amendment and Media/ NO RESERVATIONS NEEDED DAVIS WRIGHT Entertainment “Lawyer of the Year” by Best Lawyers Los > FOR MORE INFORMATION, TREMAINE LLC Angeles. For more information, please visit www.silha.umn. edu. VISIT WWW.SILHA.UMN.EDU
The University o Minnesota is an equal opportunity educator and employer. To request disability accommodations, please contact Disability Services at 612 626 133 or [email protected] at least two weeks be ore the event.
5 Police Raid Freelance Journalist’s Home and Offi ce, Prompting Criticism and Legal Action n May 10, 2019, the San had asked for Carmody’s source on the to do our jobs and make sure reports Francisco Chronicle police report, but he declined to provide are not released when they are not reported that offi cers from the person’s name, according to the supposed to be released,” he said. “If the San Francisco Police Chronicle. Carmody also insisted that he there’s criminal activity that’s proven, Department (SFPD) had did not pay his source for the report. we want to get to the bottom of that.” Oraided the home and offi ce of freelance At 8:30 a.m. on May 10, around 10 He added in a May 21 press conference journalist Bryan Carmody, seizing offi cers “banged” on the outer gate that Carmody was a criminal suspect in documents and electronic devices. The of Carmody’s home, attempting to an ongoing investigation, according to raid occurred break the gate with a sledgehammer independent California news and culture SEARCHES after Carmody and crowbar. A video of the SFPD outlet 48hills on the same day. AND SEIZURES provided three offi cers at the gate is available online However, on May 24, 2019, Scott local television at: https://twitter.com/bryanccarmody/ apologized for the raid of Carmody’s stations with a copy of a police report home and offi ce. related to the death of Jeff Adachi, a In an interview public defender in San Francisco, Calif. “[Journalists] have to be able to with the Chronicle, The actions by the SFPD prompted perform their work without fear of being Scott said SFPD signifi cant criticism from observers, compelled to explain to the state or “should have who contended that the search warrants done a better job.” had probably violated federal and state show the state how they went about He added, “I’m constitutional and statutory law. The their business.. . . They have to be free sorry that this raid also prompted motions by Carmody from state compulsion to give them their happened. I’m to quash the search warrants in the sorry to the people case and to have the police return his sources of information.” of San Francisco. seized materials and devices, as well I’m sorry to the as a motion by three media advocacy — David Snyder, mayor. We have organizations seeking to unseal the First Amendment Coalition executive director to fi x it. We know search and arrest warrants, among other there were some documents. concerns in that Carmody, who worked in the Bay status/1130631788802404352. According investigation and we know we have Area for nearly three decades as a to Carmody, when he “willingly” opened to fi x it.” Scott acknowledged that the freelance journalist, told the Chronicle the gate, the SFPD executed a search search warrants did not adequately on May 10 that he had sold the police warrant on his home, which was located identify Carmody as a journalist. report to three TV news stations, a in the Outer Richmond District. The Nevertheless, the raid and subsequent practice he had done several times police later executed a second warrant defense of the actions by SFPD offi cials before to generate income, working as at his offi ce located in the Western prompted signifi cant criticism from free a “stringer.” The report appeared on Addition neighborhood. Carmody said press advocates. In a series of tweets on evening newscasts and in print stories the police offi cers seized his computers, May 12, Electronic Frontier Foundation on February 22 within hours after cell phones, and other electronic (EFF) Civil Liberties Director David Adachi collapsed at a Telegraph Hill devices, as well as his confi dential work Greene cited Cal. Penal Code § 1524(g), apartment with a “mysterious woman” materials. He added that the police which states that “[n]o warrant shall who was not his wife, according to “[broke his] door down,” which he said [be issued] for any item or items the Chronicle. National Public Radio he “[didn’t] think was right.” Carmody described in” the statutory version of (NPR) reported on May 13 that there was detained until 3 p.m. before being the California Shield Law, which appears were several “salacious” details in the released. verbatim in the state’s constitution. The police report, suggesting that “perhaps Following the raid, David Stevenson, shield law provides that a “publisher, one or more members of the police an SFPD spokesperson, defended the editor, reporter, or other person department were trying to tarnish the department’s actions. “The search connected with or employed upon a reputation of Adachi, who was known as warrant executed today was granted newspaper, magazine, or other periodical a police watchdog and fi erce advocate by a judge and conducted as part of a publication,” as well as “a radio or for criminal justice reform.” On March criminal investigation into the leak of television news reporter or other 22, the Los Angeles Times reported that the Adachi police report,” he said. “[The] person connected with or employed Adachi had died from an accidental actions are one step in the process by a radio or television station” cannot overdose of cocaine and alcohol. of investigating a potential case of be “adjudged in contempt by a judicial, Following the release of the report obstruction of justice along with the legislative, administrative body . . . for and media coverage, SFPD offi cials illegal distribution of a confi dential refusing to disclose . . . the source of began two internal investigations police report.” The warrants were signed any information procured while so to determine the source of the leak, by California Superior Court Judges connected or employed.” Cal. Evid. calling the release of the report “totally Victor Hwang and Gail Dekreon. Code § 1070. Greene noted that in People inappropriate,” according to the San On May 15, the San Francisco v. Von Villas , the California Court of Francisco Chronicle on May 10. On Chronicle reported that SFPD Chief Bill Appeals for the Second District had April 11, SFPD’s Internal Affairs Bureau Scott also stood by the raid. “We have held that the “constitutional provision 6 plainly encompasse[d] . . . a freelance by the SFPD’s treatment of Mr. Carmody, photographs, motion picture fi lms, writer . . . within its protective shield.” and the Department’s possible disregard negatives, video tapes, audio tapes, 10 Cal. App. 4th 213 (Cal Ct. App. 1992). for the federal and state constitutional and other mechanically, magnetically David Snyder, executive director and statutory protections that strictly or electronically recorded cards, tapes, of the First Amendment Coalition limit when law enforcement may search or discs.” However, the PPA does not (FAC), a free speech and media support for, or seek to compel a journalist to protect “contraband or the fruits of a group, told the Chronicle on May 15 produce, confi dential work product or crime or things otherwise criminally that journalists “have to be able to documentary materials, or attempt to possessed, or property designed or perform their work without fear of force a reporter to identify a confi dential intended for use or which is or has being compelled to explain to the state source.” The letter added that these been used, as a means of committing a or show the state how they went about protections “are vital to journalists’ criminal offense.” their business.” He continued, “They ability to effectively gather and report Finally, the letter explained that have to be free from state compulsion to news of importance to the public” and RCFP and the media organizations give them their sources of information.” that the mass seizure of Carmody’s were “continuing to explore how” U.S. Snyder also agreed with Greene that Department of Carmody would be protected by the Justice (DOJ) California Shield Law. “Carmody is in “[F]ederal and state constitutional and guidelines the business of selling stories to news statutory protections that strictly limit regarding the outlets. That’s what freelancers do, how when law enforcement may search obtaining of they put food on the table,” Snyder said. journalists’ records “You don’t have to be on salary to a for, or seek to compel a journalist to by law enforcement news organization to be entitled to the produce, confi dential work product or “govern federal privileges of the shield law.” documentary materials . . . are vital to involvement In a May 13 statement, the Committee in this case.” to Protect Journalists’ (CPJ) North journalists’ ability to effectively gather 28 CFR § 50.10. America program coordinator Alexandra and report news of importance to the The letter added Ellerbeck also criticized the search. “The public.” that the protections police raid on [Carmody’s] home sends a in the guidelines chilling message to all local media,” she “underscore said. “Authorities should immediately — Reporters Committee for Freedom of the Press the appropriate return his equipment, stop pressuring and 59 other media organizations amicus letter sensitivity with him to reveal the identity of his sources, which journalists’ and pledge to follow California’s shield work product and law.” work, documents, and electronic documentary materials are treated under In a May 14 interview with the devices “effectively shut down [his] federal and state laws and regulations.” Columbia Journalism Review ( CJR), newsgathering activities.” The guidelines, titled “Policy Carmody’s attorney, Thomas Burke The letter cited Cal. Penal Code regarding obtaining information from, of Davis Wright Tremaine LLP in San § 1524(g) and the state shield law, or records of, members of the news Francisco, contended that “[s]earch contending that both would apply media; and regarding questioning, warrants for journalists are very, very to a freelance writer. The letter also arresting, or charging members of the rare.” He added, “They just don’t happen, cited Privacy Protection Act of 1980 news media,” were fi rst instituted in and they shouldn’t happen.” (PPA), which “protects the fl ow of 1970 by Attorney General John Mitchell On May 16, Carmody tweeted that confi dential information to journalists by in response to press uproar about the his lawyers, Burke and Ben Berkowitz, limiting when law enforcement . . . may growing number of subpoenas seeking to a partner at Keker, Van Nest & Peters search for or seize journalistic work compel journalists to reveal confi dential LLP, had fi led a motion to quash the product of documentary materials. news sources, according to RCFP on search warrants in the case, as well as 42 U.S.C. §§ 2000aa et seq. The PPA Nov. 9, 2018. a motion to return Carmody’s property, makes it “unlawful for a government In 2013, the DOJ amended the including 68 items of his work materials offi cer or employee, in connection with guidelines amidst growing criticism after and electronic devices. According to the investigation or prosecution of a the department obtained Associated Greg Hill & Associates in Los Angeles, criminal offense, to search for or seize Press (AP) telephone records listing Calif., under California Penal Code any work product materials possessed incoming and outgoing numbers of § 1538.5(a)(1), quashing a search warrant by a person reasonably believed to have individual AP reporters and several would not only challenge the lawfulness a purpose to disseminate to the public AP offi ces. The same year, the DOJ of the warrant, but also suppress a newspaper, book, broadcast, or other named Fox News reporter James evidence that was gathered by executing similar form of public communication,” Rosen as a co conspirator during a leak the warrant. but provides exceptions in situations investigation of a State Department Also on May 16, the Reporters when a journalist is specifi cally under offi cial in order to obtain e mails from Committee for Freedom of the investigation or a search is needed to Rosen’s Google account, further raising Press (RCFP) and 59 other media “prevent the death of, or serious bodily criticism of DOJ practices. (For more organizations fi led an amicus letter in injury to, a human being.” The PPA also information on the secret subpoenas San Francisco County Superior Court prohibits the seizure of “documentary of the AP, see “Justice Department in support of Carmody’s motions. materials,” which include information Secretly Subpoenas Associated Press The letter fi rst stated that the media that is “recorded, and includes, but is not Phone Records” in the Winter/Spring organizations were “deeply concerned limited to, written or printed materials, Raid, continued on page 8 7 Raid, continued from page 7 Continues Mulling Policies Regarding sealing.” The memorandum also cited Jailing, Subpoenaing, and Searching U.S. Press Enterprise v. Superior Court, 2013 issue of the Silha Bulletin and Journalists” in the Winter/Spring 2019 478 U.S. 1, 13 14 (1986), in which the “Department of Justice Revises issue of the Silha Bulletin.) U.S. Supreme Court found that a court Guidelines for Investigating Journalists” The letter therefore called on “may not base its decision [to seal court in the Summer 2013 issue. For more the court to order the immediate records or proceedings] on conclusory information on the targeting of Rosen, release of Carmody’s protected work assertions alone, but must make specifi c see “Attorney General Holder Leaves product, documentary materials, and factual fi ndings.” Problematic Legacy on Press Rights newsgathering equipment that had The memorandum argued that and Civil Liberty” in the Fall 2014 issue been seized on May 10. The full letter is because the case did not implicate of the Silha Bulletin. For more on the available online at: https://www.dropbox. Carmody’s Sixth Amendment right to a Obama administration’s prosecution of com/s/0cxabooctxlcjlq/RCFP%20 fair trial or other “prosecutorial interests individuals under the Espionage Act, see Amicus%20Motion%20for%20Filing%20 suffi cient to outweigh the public’s “President Barack Obama Leaves Mixed Brief.pdf?dl=0. right of access,” the government could Legacy on Government Transparency” in Additionally, on May 20, 2019, a not justify the “blanket sealing” of the the Fall 2016 issue of the Silha Bulletin, “Media Coalition” comprised of the warrant materials, which, therefore “Attorney General Holder Leaves FAC, RCFP, and the Northern California needed to be unsealed. Problematic Legacy on Press Rights and Chapter of the Society of Professional The memorandum also contended Civil Liberties” in the Fall 2014 issue, Journalists (SPJ) fi led a motion in that the “public’s right of access to “Manning, Kiriakou Face Punishment California Superior Court to unseal court records authorizing police for Blowing the Whistle on the War on the SFPD’s applications for search action to arrest an individual or search Terror” in the Winter/Spring 2013 issue, warrants used pursuant to the search his personal property is particularly “Leaks: New Policies Emerge; Congress of Carmody’s home and offi ce, as well important where, as here, serious Gets Involved” in the Summer 2012 as the warrants themselves, “arrest questions are raised about the propriety issue, “The Obama Administration Takes warrants, probable cause statements of those actions.” The memorandum on Government Leakers; Transparency submitted to the Court in support of continued, “Here, the press and the May be a Casualty” in the Winter/Spring issuance of those warrants, returns, and public have a powerful interest in 2012 issue, “Judge Rebukes Government lists of inventory seized.” knowing what law enforcement agencies on Leak Prosecutions” in the Summer The motion was made on two knew, at the time the warrants were 2011 issue, “Open Government independent grounds: fi rst, that under issued, about Mr. Carmody’s status as Advocates Criticize Obama’s Prosecution Cal. Penal Code § 1534(a), executed a journalist[,] . . . what information of Leakers” in the Winter/Spring 2011 and returned search warrant materials law enforcement provided to the issue, and “The Media and the Military: “shall be open to the public as a judicial Court about Mr. Carmody’s status Guantanamo Access Rules Loosened; record.” Second, the motion contended as a journalist . . ., and whether law Other Guidelines Set to Limit Leaks” in that the First Amendment, as well as enforcement and the Court followed the Fall 2010 issue.) the “California Constitution, Article I, proper procedures in approving In 2014 and 2015, the DOJ further § 2(a) and § 2(b), California Code of and executing the warrants.” The revised the guidelines, strengthening Civil Procedure § 1904, California Rule memorandum cited Waller v. Georgia , protections for reporters, according to of Court 2.550, and the common law” 467 U.S. 39, 46 47 (1984), in which the RCFP. The DOJ guidelines were most all provided that “judicial records are Supreme Court held that the public has recently brought into question on June 7, presumptively open, and cannot be a “strong interest” in overseeing police 2018 when The New York Times reported sealed absent specifi c, on the record misconduct. that during an FBI investigation into fi ndings that there is an overriding Finally, in a footnote, the Media alleged classifi ed leaks by former U.S. interest that overcomes the right of Coalition argued that Carmody’s Senate Select Committee on Intelligence public access.” disclosure of the police report “was (SSCI) director of security James A. In a memorandum supporting the not prohibited under California law,” Wolfe, who was charged and arrested motion, the Media Coalition further citing Cal. Gov’t Code § 6254(f), which in early June on three counts of lying argued that the “public’s presumptive “authorizes, but does not mandate, to federal authorities, prosecutors First Amendment right of access to an agency’s withholding of ‘records secretly seized phone and email records court [proceedings and] records applied of . . . investigations conducted of Times reporter Ali Watkins. (For in this case and “require[d] greater by . . . any state or local police agency[.]’” more information on the confi scating transparency,” citing NBC Subsidiary The memorandum further argued that of Watkins’ records, see Federal (KNBC TV), Inc. v. Superior Court, although the disclosure of the report Prosecutors Seize Phone and Email 20 Cal. 4th 1178, 1226 (Cal. 1999), in “may have violated internal procedures Records of New York Times Reporter which the California Supreme Court or department protocol,” such disclosure in Leak Investigation in “Trump determined that court records “cannot of a public record could not constitute a Administration Targets Journalist, be maintained under seal unless a court criminal act. Leaker of Government Information, specifi cally fi nds that: (1) there is an The memorandum contended that and Former Government Employees overriding interest that overcomes the even if the disclosure was unlawful, Who Took Classifi ed Documents” in the public’s right of access; (2) there is a “well established law protects Summer 2018 issue of the Silha Bulletin. substantial probability that sealing will Carmody’s receipt and publication of For more information on the DOJ promote that interest; (3) the sealing the report,” citing Bartnicki v. Vopper, guidelines, see DOJ Reviews Guidelines order is narrowly tailored to serve the 532 U.S. 514, 529 535 (2001), in which Regarding Issuing Subpoenas, Court overriding interest; and (4) that there the Supreme Court held that “liability Orders, and Search Warrants Against are no less restrictive alternatives to for broadcasting recorded conversation Journalists in “Department of Justice 8 lawfully obtained from one known to detail records, SMS Usage, Mobile Data unsealed by East revealed that the have illegally intercepted the call where usage, cell tower data.” The warrant, SFPD had only told East that Carmody’s information related to a matter of public which was released on May 31, also LinkedIn page “listed him as a ‘Freelance concern violated the First Amendment.” allowed SFPD to “conduct remote Videographer/Communications The memorandum also cited Landmark monitoring of the Subject Telephone Manager.’” The SFPD did not tell East Communications, Inc. v. Virginia, 435 Number device, day or night, including that Carmody was “well known in the U.S. 829, 838, 841 (1978), in which the those signals produced in public, or police department and beyond for Court held that it was contrary to the locations not open to public or visual covering police activities on a daily First Amendment to convict a newspaper surveillance.” According to the warrant, basis” and had a valid press pass issued for publishing confi dential complaints Carmody was not informed of the by SFPD, according to the FAC. against a state judge. surveillance as it “would seriously Snyder said in the press release, “The The full motion and memorandum are jeopardize this investigation.” The search police department knew that Carmody available online at: https://drive.google. warrant is available online at: https:// has a press pass, and they knew he was com/fi le/d/0B3FfCyQy Cb9QkNNckVFejF www.dropbox.com/s/czlyt7esf3te2w2/ a journalist — but failed to tell Judge xVU9SSF85enFjbnZRY1BlVUR3/view. SFPD%20Certifi ed%20Letter%20recd%20 East that fact.” He continued, “The more On May 23, Carmody tweeted that 5 31 19%20REDACTED%20by%20 we learn about the police department’s although a judge had not yet ruled on Bryan%20Carmody.pdf?dl=0. extreme overreach here, the more the his motions, most of his electronic On June 1, Carmody tweeted that fi ve city’s violation of California and federal devices, notes, and other property were search warrants had been released. One law becomes obvious. There must be returned to him by the SFPD, though he warrant allowed the SFPD to search accountability, at the highest levels of noted that some items had not yet been “the person of [Carmody],” as well as his San Francisco government, for this returned. As the Bulletin went to press, home. The warrant is available online trampling on journalists’ rights. Carmody had not announced whether at: https://californiaglobe.com/legal/ Following East’s ruling, Burke he had received all of his materials and exclusive warrant details search of contended that her decision could signal equipment. journalists home in adachi leak probe/. that the other judges would rule the On May 28, the San Francisco On June 14, Superior Court Judge same way. The FAC press release noted Chronicle reported that the SFPD had Samuel Feng declined to rule on that four other judges in the case had executed at least fi ve search warrants Carmody’s motions, holding that the deferred ruling until East had done so against Carmody, and perhaps as many motions to quash and unseal needed on the merits of the Media Coalition’s as seven, more than was previously to be heard by each of the judges who motion to unseal the initial search acknowledged or revealed. Carmody signed off on the individual warrants. warrant. summarily expanded his motion to The San Francisco Chronicle reported In an August 5 press release, the FAC quash to include three additional search on July 19 that San Francisco County reported that three additional judges warrants in the case. In an interview Superior Court Judge Rochelle East had ordered the release of applications with the Chronicle, Scott acknowledged had quashed the search warrant she for three search warrants executed the existence of the previously signed that was used by SFPD to search against Carmody. According to the FAC, undisclosed warrants. “We served Carmody’s phone, calling the searches the orders by Superior Court Judges warrants on offi cers and a number of against Carmody “breathtakingly Dekreon, Hwang, and Christopher Hite, warrants on Mr. Carmody, including a overbroad.” The order barred were similar to East’s. Dekreon said warrant on a very specifi c time for his investigators from using any evidence police did not inform her Carmody was a phones, and one of the issues that I saw that was obtained under the order, journalist when she authorized a search in this is in the initial warrants,” Scott according to the Chronicle. According warrant of his home, according to the said. to Carmody in a July 18 tweet, the press release, which also noted that all Berkowitz told the Chronicle that warrant was the fi rst issued against three judges had quashed the warrants “[i]t would be deeply troubling to learn him and was dated March 1, 2019. A they had previously signed. that the SFPD not only obtained an copy of the warrant is available online On August 16, 48hills reported that illegal search warrant for Mr. Carmody’s at: https://twitter.com/bryanccarmody/ Superior Court Judge Joseph Quinn home and offi ce, but that they also status/1151990974723186689. quashed the fi nal search warrant, which illegally obtained a search warrant for East also ordered that any sealed also targeted Carmody’s cell phone his phone records.” He added, “If that is documents related to the warrant, records. However, Quinn did not order true, not only is it illegal, but it clearly including the application fi led by the warrant to be unsealed because of a violated the First Amendment and the SFPD, be released, minus one redacted pending request to redact police offi cers’ California shield law and they need to be paragraph. According to an FAC press names. As the Bulletin went to press, held accountable for it.” release on the same day, East said Quinn had not ruled on the motion to On May 31, 2019, ABC 7 in San during the hearing that SFPD did not unseal the warrant. Francisco reported that the SFPD had, tell her that Carmody was a journalist, in fact, requested and received a search suggesting the department did not tell SCOTT M EMMEL warrant for “information from Carmody’s the other judges as well. SILHA BULLETIN E DITOR cell phone for the day after Adachi died,” In a July 23, 2019 press release, including “subscriber information, call the FAC reported that the documents
9 Second Circuit Rules President Trump Violated the First Amendment By Blocking Twitter Users n July 9, 2019, the U.S. Court On May 23, 2018, Southern District of owned or controlled by the government,” of Appeals for the Second New York Judge Naomi Reice Buchwald but instead was a “platform for his own Circuit ruled that President ruled in favor of the Knight Institute, private speech and not one for the private Donald Trump could not block fi nding that President Trump and Scavino, expression of others.” Twitter users from his Twitter by blocking Twitter users who criticized However, Parker held that President Oaccount, reasoning that he had created a the president or his policies, had engaged Trump’s account was a “government public forum and that blocking users that in viewpoint based discrimination. She account” and that he had “excluded criticized him or his policies constituted wrote, “While we must recognize, and are the Individual Plaintiffs from viewpoint based sensitive to, the President’s personal First government controlled property when he Amendment rights, he cannot exercise used the blocking function of the Account FIRST discrimination in violation of the those rights in a way that infringes the to exclude disfavored voices.” Parker AMENDMENT First Amendment. corresponding First Amendment rights of cited “uncontested evidence in the record Knight First those who have criticized him.” of substantial and pervasive government Amendment Institute v. Trump, Buchwald also addressed whether involvement with, and control over, the 2019 WL 2932440 (2nd Cir. 2019). The President Trump’s Twitter account Account,” including that the account Second Circuit upheld the ruling by represented a public forum, which was presented by President Trump and the U.S. District Court for the Southern required that the space “be owned his administration as belonging to, and District of New York, which also or controlled by the government.” operated by, the president. This was found that President Trump, as well as Buchwald found that “[although] Twitter evident in several ways, including that then White House Director of Social is a private . . . company that is not the account was registered to “Donald Media and Assistant to the President government owned, the President and J. Trump, ‘45th President of the United Daniel Scavino, had violated the First Scavino nonetheless exercise control over States of America, Washington, D.C’” Amendment by blocking Twitter users various aspects of the @realDonaldTrump and that the White House’s offi cial who had criticized the president. Knight account,” particularly “the content of account, @WhiteHouse, “directs Twitter First Amendment Institute v. Trump, tweets, the timeline comprised of the users to ‘Follow for the latest from 2018 WL 2327290 (S.D.N.Y. 2018). account’s tweets, and the interactive space @POTUS @realDonaldTrump and his The case arose in 2017 when President of each tweet.” Administration.’” Trump blocked several Twitter users from Furthermore, Buchwald found that Parker wrote that President his account, @realDonaldTrump, after “the interactive space for replies and Trump had frequently used the they had criticized him and his policies. retweets created by each tweet sent account “on almost a daily basis ‘as On June 6, 2017, First Amendment by the @realDonaldTrump account” a channel for communicating and lawyers at the Knight First Amendment (interactive space) was a “designated interacting with the public about Institute (Knight Institute), a non profi t public forum” because it is “generally his administration’ . . . [and] offi cial organization funded by the Knight accessible to the public . . . regard[less] government business.” Additionally, Foundation and based at Columbia of political affi liation” and is “designed according to Parker, President Trump had University, sent President Trump a letter to allow users ‘to interact with other used the account “as an important tool [users.]’” The U.S. Department of Justice of governance and executive outreach,” asking him to unblock two Twitter users. (DOJ), which represented President including “to engage with foreign leaders The letter contended that blocking Twitter Trump and Scavino, summarily appealed and to announce foreign policy decisions users “suppresses speech in a number the case to the Second Circuit. (For more and initiatives.” of ways” including that the users cannot information on the background of the case Although Parker ruled that the follow President Trump on Twitter, are and Buchwald’s ruling, see Federal Judge evidence demonstrated that President limited in their ability to see and fi nd Rules President Trump Cannot Block Trump’s account was a “government his tweets, and cannot identify which Twitter Users, Violated First Amendment account,” he wrote that this may not be accounts follow the president. The letter in “Federal Courts and State Governors the case for every social media account also argued that President Trump’s Twitter Deal with First Amendment Implications operated by a public offi cial. Therefore, account is a public forum and that by of Politicians Blocking Social Media he concluded that the determination of blocking users from that forum, President Users” in the Summer 2018 issue of the whether First Amendment concerns are Trump had violated the First Amendment Silha Bulletin.) raised by such an account relies on a through viewpoint based discrimination. Second Circuit Judge Barrington “fact specifi c inquiry.” On July 11, the Knight Institute fi led D. Parker, Jr. wrote the opinion of the Second, Parker turned to whether a complaint seeking declaratory and unanimous three judge panel. Because the President Trump’s Twitter account injunctive relief in the Southern District government had conceded that President constituted a public forum. Parker of New York after President Trump or his Trump blocked the plaintiffs because explained that the government creates aides failed to unblock several Twitter they posted tweets that criticized him or a public forum when it “[o]pen[s] an users. The individual plaintiffs included his policies, and that such criticism was instrumentality of communication Twitter users Rebecca Buckwalter, Philip protected speech, Parker fi rst addressed ‘for indiscriminate use by the general Cohen, Holly Figueroa, Eugene Gu, whether the president had acted in a public,’” citing Perry Education Brandon Neely, Joseph Papp, and Nicholas “governmental capacity or as a private Association v. Perry Local Educators’ Pappas, all of whom had criticized citizen.” He noted that President Trump Association, 460 U.S. 37, 47 (1983). Parker President Trump or his policies before claimed that his account was “not a space concluded that because the account was being blocked. 10 “intentionally opened for public discussion passion and intensity the likes of which Trump’s] ability to exclude others when the President . . . repeatedly used have rarely been seen.” Parker contended from this personal property is likewise the Account as an offi cial vehicle for that this debate, “as uncomfortable and independent of his offi ce. That authority governance and made its interactive as unpleasant as it frequently may be, is was conferred on him by Twitter, not by features accessible to the public without nonetheless a good thing.” He therefore the government.” limitation,” the conduct created a public “remind[ed] the litigants and the public In an August 23 email to the AP, Jaffer forum. that if the First Amendment means wrote, “The panel’s opinion was thorough Third, Parker concluded that President anything, it means that the best response and well reasoned, and the arguments Trump committed viewpoint based to disfavored speech on matters of public the White House [made] in its petition for discrimination by blocking and, therefore, concern is more speech, not less.” rehearing are ones the panel appropriately excluding from the public forum users The full ruling is available online at: rejected. We hope . . . that the petition will who criticized him or his policies, https://knightcolumbia.org/sites/default/ be denied.” As the Bulletin went to press, “something the First Amendment fi les/content/Cases/Twitter/2019.07.09_ the Second Circuit had not announced prohibits.” He rejected the government’s Opinion.pdf. . whether it would rehear the case. argument that the plaintiffs were not Following the Second Circuit’s The Second Circuit was not the prevented from speaking because they decision, Knight Institute executive fi rst federal appeals court to rule that could express themselves elsewhere director Jameel Jaffer, who argued the a public offi cial had violated the First beyond the interactive space of President case before the Second Circuit, praised Amendment by blocking a social media Trump’s account. Parker reasoned that the ruling. “Public offi cials’ social media user with whom they disagreed. On although the plaintiffs did not have a accounts are now among the most Jan. 7, 2019, the Fourth Circuit held right to require the president to listen to signifi cant forums for discussion of that defendant Phyllis Randall, Chair their speech, they did have the right to government policy,” he said in a July 9 of the Loudoun County (Va.) Board of speak to the other Twitter users who were statement. “This decision will ensure that Supervisors, engaged in viewpoint based speaking to or about President Trump via people aren’t excluded from these forums discrimination by blocking plaintiff Brian his account. simply because of their viewpoints, and Davison, a community activist, from a Parker further found that different that public offi cials aren’t insulated from public Facebook page, violating his First “workarounds” such as creating new their constituents’ criticism.. . . The Amendment rights. Davison v. Randall, accounts, logging out to view President decision will help ensure the integrity 912 F.3d 666 (4th Cir. 2019). Trump’s tweets, and using Twitter’s search and vitality of digital spaces that are Judge James Wynn wrote the majority functions, still burdened the blocked increasingly important to our democracy.” opinion of the Fourth Circuit, holding users’ speech, which also “run[s] afoul of In a July 15 opinion piece for The that Randall’s offi cial Facebook page, the First Amendment.” Ultimately, Parker Gainesville Sun, University of Florida particularly the interactive component concluded that “once [President Trump] professor and Marion B. Brechner First of the page where any Facebook user open[ed] up the interactive features of Amendment Project director Clay Calvert could post comments, constituted a public his account to the public at large he is praised the ruling as a “victory for the forum. Wynn reasoned that Randall’s not entitled to censor selected users First Amendment right of citizens to offi cial Facebook page “[bore] the because they express views with which he speak to and disagree with government hallmarks of a public forum,” including disagrees.” offi cials in the social media era.” He that she opened the public comment Fourth, Parker turned to the argued that the ruling was “grounded section for “public discourse” for “ANY government’s argument that the account in the well established principles of Loudoun citizen” and “on ANY issues, contained government speech, which protecting political speech and barring request, criticism, [or] complement [sic]” would mean that “[t]he Free Speech government discrimination against people (emphasis in original). Wynn also ruled Clause does not require government to engaged in public discourse based on their that Randall’s ban of Davison amounted to maintain viewpoint neutrality[.]” Parker viewpoints.. . . This decision brings the viewpoint based discrimination because wrote that President Trump’s initial tweets Supreme Court’s longstanding free speech Randall had blocked Davison due to the that he produced himself were, in fact, doctrine into the social media era.” allegations he posted about confl icts government speech. However, he argued In a July 11 interview with The Verge, of interest and corruption by Loudoun that the case turned on more than these Cornell Law School professor James County’s School Board members, which initial tweets, but instead on President Grimmelmann contended that interpreting Randall said were “slanderous” and that Trump’s “supervision of the interactive the Second Circuit’s ruling in other cases she “didn’t want [them] on the site.” features” of his Twitter account. Because may be diffi cult. “[President Trump] made Wynn called the case an example of President Trump did not exercise any this a very easy case,” he said. “It’s a “black letter viewpoint discrimination.” control over the messages of others tied harder question if a politician is using it to (For more information on the Fourth to his account, “any retweets, replies, and interact with the public but is not claiming Circuit’s ruling and the facts of the likes of other users in response to the to use it for offi cial business.” case, see Fourth Circuit Holds Local president’s tweets [were] not government On Aug. 23, 2019, the Associated Press Offi cial Violated the First Amendment speech.” (AP) reported that the DOJ had requested By Blocking a Facebook User from an Finally, Parker concluded by writing an en banc hearing by the full Second Offi cial Page in “Fourth Circuit and that the “irony in all of this is that we Circuit. The DOJ wrote in a court fi ling, Western District of Wisconsin Rule Public [are] at a time in the history of this nation “If the panel is correct, public offi cials Offi cials Violated the First Amendment when the conduct of our government who address matters relating to their By Blocking Social Media Users” in the and its offi cials is subject to wide open, public offi ce on personal accounts will Winter/Spring 2019 issue of the Silha robust debate,” which includes an run the risk that every action taken on Bulletin.) “extraordinarily broad range of ideas that account will be state action subject SCOTT M EMMEL and viewpoints and generates a level of to constitutional scrutiny.. . . [President SILHA BULLETIN E DITOR 11 White House Revokes and Suspends Hard Press Passes Under New Rules n a May 8, 2019 Washington Post tweet, Sen. Patrick Leahy (D Vt.) cited access for all journalists/2019/05/08/ opinion piece, Dana Milbank, the Milbank’s May 8 commentary and wrote bb9794b4 71c0 11e9 8be0 ca575670e91c_ Post’s op ed columnist covering “This is what dictators do.” Washington story.html?noredirect=on&utm_ national politics, wrote that he had Post columnist Glenn Kessler tweeted on term=.90a4a91fea52. received an email from the White the same day, “Revolting behavior by this Columbia Journalism Review (CJR) IHouse Press Offi ce stating that his hard administration.” chief digital writer Mathew Ingram press pass, a physical press credential In a May 9 statement, the Society of agreed in a May 9, 2019 commentary, granting him access to the White House, Professional Journalists (SPJ) wrote writing that with “most of the press had been revoked. that it “continue[d] to be dismayed corps holding passes that have only Milbank reported and concerned with the White House’s been issued as ‘exceptions,’ the White ACCESS that he was “not treatment of the press after the revoking House has a structure in place that could the only one” and of press credentials from several allow it to remove whoever it wishes to was “part of a mass journalists who regularly cover it, remove.. . . [I]n the short term it gives the purge of ‘hard pass’ holders” after the including [Milbank].” National President Trump administration new levers with White House changed its rules regarding J. Alex Tarquinio was quoted as saying which to control the press corps.” Ingram distributing hard passes. Meanwhile, on “This administration needs to stop added that the new rules could be “an August 2, Playboy magazine senior White playing games with White House press attempt exert more direct control over the House reporter and CNN political analyst credentials.” He added, “By changing White House press corps.” Brian Karem tweeted that the White the criteria and selectively applying the On June 26, 2019, The Washington House had suspended his press pass for new rules, their actions fl y in the face Post noted that former communications 30 days. According to Karem, whose of the widely accepted principles of director for fi rst lady Melania Trump reporting at times criticized President press freedom and the Fourth Estate as Stephanie Grisham, who replaced Donald Trump and his administration, the a necessary watchdog of government.” Sanders as White House Press Secretary White House cited a confrontation he had The full statement is available online at: on June 25, 2019, had previously had with a radio show host in the White https://www.spj.org/news.asp?REF=1649. threatened to revoke the press pass of House Rose Garden several weeks earlier. In a May 9 opinion piece for CNN, Hank Stephenson, then a reporter for the According to Politico on March 19, Joe Lockhart, the White House Press Arizona Capital Times, in her capacity 2019, White House reporters received an Secretary from October 5, 1998 to as press secretary for the Republican email on the weekend of March 16 from September 29, 2000 during President Bill majority in the Arizona House of the White House Press Offi ce informing Clinton’s presidency, argued that under Representatives. Grisham had instituted them that the rules for distributing hard the new rules, “deciding on a daily basis a policy, according to the Post, requiring passes had changed. The email stated whether to grant press access to those that reporters undergo an “invasive” that in order to qualify for a hard pass, a whose permanent credentials have been background check into their addresses, reporter needed “to be physically present revoked offers a strong a temptation to driving records, and criminal and civil at the White House for [their] job 90 or deny access based on a reporter’s latest histories. Reporters who did not consent more days in a 180 day window of time.” story.” He continued, “Essentially, that’s to the background check would have their The email added that journalists could the slippery slope [then White House credential revoked, meaning they would apply for six month passes if they covered Press Secretary] Sarah Sanders and be denied access to the state’s House the White House at least 60 of 180 days the White House have started down. fl oor. The Post wrote that although the and that the White House would grant A signifi cant number of White House policy was rescinded days later after every exceptions to “senior journalists” who reporters have lost their permanent daily member of the Phoenix, Ariz. press corps are “consistently engaged in covering the access based on the new policy.. . . There refused to sign the form, it marked “the White House” and for those with “special is no evidence yet that any of them will most high profi le controversy to defi ne circumstances.” be denied access to do their jobs, but the [Grisham’s] tenure in Arizona. On May 8, Milbank wrote in his opinion combination of the new rules and this Meanwhile, on Aug. 2, 2019, Karem, piece, titled “The White House revoked my administration’s attitude toward the press who observers noted was known for his press pass. It’s not just me — it’s curtailing make it almost inevitable.” criticism of President Trump, tweeted access for all journalists,” that his hard Milbank similarly argued that under that his White House hard pass had been pass was revoked under the new rules, the new policy, “virtually the entire suspended for 30 days. CNN reported on along with seven of his colleagues at The White House press corps is credentialed the same day that the White House cited Washington Post . However, according to under ‘exceptions,’ which means, in a Karem’s July 11 confrontation with radio Milbank, the Post requested “exceptions” sense, that they all serve at the pleasure host Sebastian Gorka. While waiting for a for himself and the other reporters, with of [Sanders] because they all fail to presidential press conference in the Rose the White House granting exceptions to meet credentialing requirements — and Garden, Karem called the attendees of the the other seven, but not Milbank, who therefore, in theory, can have their preceding social media summit, which wrote that he “strongly suspect[ed]” it credentials revoked any time they observers contended was largely meant was because he was a critic of President annoy Trump or his aides[.]” Milbank’s for President Trump’s supporters, “a group Trump. full opinion piece is available online of people eager for demonic possession.” Milbank’s revelations and the White at: https://www.washingtonpost.com/ Karem and Gorka then shouted at each House’s new rules prompted signifi cant opinions/the white house has revoked my other, including Gorka yelling “You’re criticism from observers. In a May 8, 2019 press pass its not just me its curtailing a punk, you’re not a journalist, you’re 12 a punk,” to which Karem responded by basis of its decisions to suspend Karem’s and violence towards journalists that urging Gorka to “get a job,” according to press pass did not satisfy the requirements cannot be tolerated and they are illegally Fox News on August 2. under Sherrill. using the credential process to stifl e In an August 2 interview with The The letter further argued that Karem freedom of the press and to disrupt the Washington Post , Karem explained that was provided “no process before [the fl ow of vital information to the American the White House told him that he “failed White House] reached [its] ‘preliminary people.” to abide by basic norms of decorum” and decision,’ which was revealed to Mr. As the Bulletin went to press, Karem that he had been rude to “a guest of the Karem after the fact, limiting Mr. Karem had not offi cially fi led a lawsuit in federal president.” He added, “They’re claiming to an ‘appeal’ on short notice of a decision court. [the reason is] something that happened already made” (emphasis in original). Observers noted that several of 21 days ago. I’m there every day. If this Third, the letter asserted that the the arguments raised in Karem’s and was an issue, it should’ve been brought White House’s decision was content Boutrous’ letter were those made to my attention long before now.. . . As a and viewpoint based discrimination, by Boutrous after the White House matter of record, they never spoke to me reasoning that the Trump administration attempted to revoke CNN reporter Jim once about it.” singled out Karem rather than the social Acosta’s credential in November 2018. In an August 2 tweet, Playboy wrote media summit attendees who “behaved The confl ict arose on Nov. 7, 2018 when that the “[s]uspension of credentialed far worse.” The letter further argued that President Trump called Acosta “a rude, press by the government is incredibly the White House’s decision to wait 22 terrible person” after he asked the concerning.” The publication added, “We days before suspending Karem’s pass, president repeated questions about his are working with our lawyers to appeal during which time President Trump characterization of the Central American the decision to suspend @briankarem. answered several of Karem’s questions, migrant caravan as “an invasion” during Since 1953, Playboy has fought to protect suggested that “the decision [was] less a press conference following the 2018 First Amendment rights, and the fi ght about protecting safety or decorum than midterm elections. As Acosta continued must continue today.” The tweet linked to silencing a journalist known for tough trying to question President Trump about the account of Gibson, Dunn & Crutcher questioning of the President.” the migrant caravan and the Special LLP attorney Theodore J. Boutrous. Finally, the letter argued that the White Counsel investigation by Robert Mueller, (Boutrous delivered the 33rd Annual Silha House provided “no explanation as to President Trump repeated “That’s enough” Lecture, titled “Confi dential Sources of why suspending Mr. Karem’s hard pass and told Acosta to “put down the mic” as Journalists: Protection or Prohibition?” on [was] a suffi ciently tailored restriction a White House intern reached to grab it. Oct. 17, 2018. For more on the lecture, see on his First Amendment liberty interests Hours later, several media outlets reported “33rd Annual Silha Lecture Addresses the where several less severe restrictions that the White House had revoked Free Speech Implications of the #MeToo [were] available.” The letter cited Sherrill, Acosta’s hard pass. Movement” in the Fall 2018 issue of the which required “compelling” reasons for On November 13, CNN and Acosta Silha Bulletin.) revoking a hard pass. fi led a lawsuit in the U.S. District Court Karem also tweeted that he would The letter added, “Hard passes are not for the District of Columbia against appeal the decision. On August 5, meant to be weaponized as a means of President Trump and several members of Boutrous sent a letter to Grisham penalizing reporters for coverage with his administration, arguing that Acosta’s formally responding to and appealing the which the administration disagrees based First and Fifth Amendment rights had suspension of Karem’s press credentials. on amorphous and subjective standards. been violated, and that President Trump’s The letter began by stating, “[T]his Such actions unconstitutionally chill the administration failed to follow the Administration’s unprecedented and free press.” The letter therefore called proper protocols, therefore violating the unconstitutional attempts to convert for Grisham to fully restore Karem’s hard Administrative Procedure Act, 5 U.S.C. the hard pass system into a means of pass. The full letter is available online at: § 706. Boutrous signed the complaint, censoring and penalizing the press charts https://www.gibsondunn.com/wp content/ which was accompanied by a motion for a dangerous path that we hope [Grisham uploads/2019/08/Karem White House a temporary restraining order (TRO). and the White House] will reconsider.” Letter.pdf. Boutrous represented CNN at a November Second, the letter argued that the On August 16, Karem tweeted that he 14 hearing regarding the motion for the White House had violated Karem’s First had “[j]ust received word from the [White TRO. Amendment due process rights. The letter House]” in a letter that the suspension of On November 16, Judge Timothy J. contended that the White House had not his hard pass for 30 days was “fi nalized.” Kelly, who was appointed to the District issued any “explicit rules . . . to govern Citing Boutrous’ Twitter account, Karem of Columbia by President Trump in behavior by members of the press at stated, “We will now go to court and sue.” 2017, ruled that the White House was White House press events,” such as the In an August 16 statement, Boutrous wrong to revoke Acosta’s credentials July 11 social media summit. The letter also wrote that they “intend[ed] to and must immediately return them, cited Sherrill v. Knight, 569 F.2d 124 seek immediate relief in federal court.” granting the plaintiffs’ request for a TRO. (D.C. Cir. 1977), in which the U.S. Court Boutrous added, “The White House Although Kelly did not offi cially rule on of Appeals for the D.C. Circuit held that press secretary’s arbitrary decision to the underlying case regarding the First due process in this context requires that suspend [Karem’s] press pass credential and Fifth Amendments, he found that the government “articulate and publish violates the First Amendment and due the White House did not provide Acosta an explicit and meaningful standard” process and is yet another example of with the due process required to legally (emphasis in original) regarding the this administration’s unconstitutional revoke his press pass, therefore causing revoking or suspending of White House campaign to punish reporters and press Acosta “irreparable harm.” Kelly reasoned press passes. Therefore, according to coverage that President Trump doesn’t that the decision to revoke Acosta’s hard the letter, the White House’s reliance on like. The president and his administration a “widely shared understanding” as the are fostering an atmosphere of hostility White House, continued on page 14 13 White House, continued from page 13 Spicer’s offi ce instead of the televised machinery of government to retaliate or session typically held in the White House threaten reprisals against journalists and pass was “so shrouded in mystery that briefi ng room. Time magazine and the media outlets for coverage he dislikes.” the government could not tell me . . . who Associated Press (AP) boycotted the PEN America’s complaint included made the decision.” briefi ng to show support for the banned several examples, including the Trump On November 19, the White House media. Conversely, overtly conservative administration’s efforts to ban Collins reached a “fi nal determination” and told news organizations The Washington from the Rose Garden press conference. CNN that it would restore Acosta’s press Times , One America News Network, and (For more information on PEN America’s credentials, so long as he abided by new Breitbart News were invited to attend lawsuit, see PEN America Files First rules at presidential press conferences, the meeting. (For more information on Amendment Lawsuit Against President which included: “(1) a journalist called the exclusion of the media outlets from Trump, Alleges He Retaliated Against upon to ask a question will ask a single the press briefi ng, see President Trump Media Outlets and Journalists in question and then will yield the fl oor to Continues Longstanding Battles with the “President Trump Prevails in Two Federal other journalists; (2) At the discretion Courts’ First Amendment Rulings, Faces Press in “Media Face Several Challenges of the President or other White House New First Amendment Lawsuit” in the Fall During President Trump’s First Months in offi cial . . . a follow up question or 2018 issue of the Silha Bulletin.) Offi ce” in the Winter/Spring 2017 issue of questions may be permitted . . . (3) ‘Yielding On Feb. 7, 2019, PEN America fi led the fl oor’ includes, when applicable, the Silha Bulletin.) an amended complaint, which included physically surrendering the microphone On July 25, 2018, the Trump additional examples of “the President’s to White House staff for use by the next administration “banned” CNN reporter threatened and actual revocations questioner.” Failure to abide by these rules Kaitlan Collins from a press availability of security clearances of media could “result in suspension or revocation with President Trump and Jean Claude commentators and White House press of the journalist’s hard pass.” Juncker, the president of the European credentials, including of Acosta. The (For more information on the White Commission, who were meeting in the amended complaint also cited President House’s attempt to revoke Acosta’s Rose Garden of the White House. Earlier Trump’s Nov. 9, 2018 threat to revoke the hard pass, the ensuing legal battle, and that day, Collins represented all television credentials of other journalists who failed the new rules for presidential press networks as the “pool reporter” and had to show him “respect.” According to the conferences, see President Trump Calls asked several questions about President amended complaint, President Trump CNN Reporter “Rude, Terrible Person,” Trump’s former lawyer, Michael Cohen, singled out April Ryan, White House Revokes His Press Credentials; Federal at a photo op of the two leaders in the correspondent for the American Urban Judge Requires Trump Administration Oval Offi ce. (For more information on the Radio Networks, calling her “a loser” who Reinstate Credentials in “President White House banning Collins, see Five “doesn’t know what the hell she is doing.” Trump Continues Anti Press Rhetoric and Newspaper Staff Members Killed, Two The full amended complaint is available Actions” in the Fall 2018 issue of the Silha Injured in Shooting at Local Maryland online at: https://pen.org/wp content/ Bulletin.) Newsroom in “Journalists Face Physical uploads/2019/02/PEN America v Trump The White House’s attempt to revoke Violence, Other Dangers in the United Amended Complaint 2.6.19.pdf. As the Acosta’s hard pass was not the fi rst States and Abroad” in the Summer 2018 Bulletin went to press, the Southern instance of the Trump administration issue of the Silha Bulletin.) District of New York had not announced a excluding reporters from an event. In In October 2018, literary and human ruling in the case. February 2017, several media outlets, rights group PEN American Center, including The New York Times, CNN, and Inc. (PEN America) fi led a lawsuit in SCOTT M EMMEL others, were banned from attending a the U.S. District Court for the Southern SILHA BULLETIN E DITOR “gaggle,” a press briefi ng that took place District of New York against President in then White House Press Secretary Sean Trump, arguing that he had “us[ed] the
Director’s Note
The Summer 2019 issue of the Silha Bulletin includes several articles adapted from “Privacy and Data Protection,” a chapter published in the course handbook for the Practising Law Institute’s Communications Law in the Digital Age conference, which will take place in New York City in November 2019. Professor Kirtley gratefully acknowledges the contributions of Silha research assistants Sarah Wiley, Eric Arch, and Scott Memmel.
JANE E. KIRTLEY SILHA C ENTER D IRECTOR AND SILHA P ROFESSOR OF M EDIA E THICS AND L AW
14 FTC Reaches $5 Billion Settlement with Facebook, Prompting Praise and Criticism n July 24, 2019, the Federal privacy audits from an independent who have settled previous FTC actions Trade Commission (FTC) third party,” according to an Aug. 10, must also comply with FTC order announced in a press 2012 press release. The FTC further provisions imposing privacy and data release that it was imposing ordered that Facebook “shall not security requirements. Accordingly, the a $5 billion fi ne against misrepresent in any manner, expressly FTC takes very seriously recent press OFacebook, as well as instituting several or by implication, the extent to which reports raising substantial concerns new “privacy restrictions” on the social it maintains the privacy or security of about the privacy practices of Facebook. media company. The FTC previously covered information,” among other Today, the FTC is confi rming that it has voted 3 2 along requirements. The full decision and an open non public investigation into party lines on July order is available online at: https://www. these practices.” (For more information DATA PRIVACY 12 to approve the ftc.gov/sites/default/fi les/documents/ on the Cambridge Analytica scandal, see fi ne, which marked cases/2012/08/120810facebookdo.pdf. “Facebook Faces Continued Scrutiny the largest penalty The full press release is available online Over Data Privacy and Cambridge ever assessed against a technology at: https://www.ftc.gov/news events/ Analytica Scandal” in the Winer/Spring company by the FTC for violations of press releases/2012/08/ftc approves fi nal 2019 issue of the Silha Bulletin and consumers’ privacy, as reported by The settlement facebook. “Facebook, Google Fail to Protect Users’ Washington Post and Wired magazine, In March 2018, The New York Times Data; Tech Companies and Federal among other publications. The fi ne and The Observer of London reported Government Pursue Federal Data Privacy stemmed from the Cambridge Analytica that Cambridge Analytica, a subsidiary Frameworks” in the Fall 2018 issue.) scandal in which the political data fi rm of the British based political data During the investigation, on April 19, connected to President Donald Trump’s analysis company SCL Group, had 2019, The Washington Post and NBC 2016 campaign harvested personal data gained unauthorized access to personal News reported that FTC offi cials were from more than 50 million Facebook information of millions of Facebook debating whether to hold Facebook CEO users without permission. Although some users in 2015. Cambridge Analytica Mark Zuckerberg personally accountable observers praised the FTC’s settlement obtained the data from a Facebook app as part of the ongoing secret negotiations with Facebook, others criticized the fi ne called “thisisyourdigitallife,” which was between the agency and social media as not going far enough to punish the developed by Cambridge University company. However, it was not disclosed social media company. researcher Aleksander Kogan. The app what specifi c measures were being Previously, in November 2011, the paid Facebook users to complete a considered. FTC announced that Facebook had personality quiz and informed them that On July 12, 2019, the FTC voted agreed to a settlement after the agency user profi le data would be collected. 3 2 along party lines to approve a fi led an eight count complaint against the When data collection began in 2014, only $5 billion fi ne against Facebook, as social media company for “deceiv[ing] about 270,000 Facebook users consented well as heightened privacy and security consumers by telling them they could to sharing their information. requirements providing accountability “at keep their information on Facebook However, the app also harvested data the board of directors” and “individual” private, and then repeatedly allowing it from profi les of the users’ friends, even levels. On July 24, 2019, the FTC formally to be shared and made public.” Under though the friends had not consented announced that after “a yearlong the proposed settlement (2011 consent to data collection. Ultimately, Kogan investigation . . . the [U.S. Department decree), Facebook was “barred from shared more than 50 million raw data of Justice (DOJ)] will fi le a complaint on making misrepresentations about profi les with Cambridge Analytica. The behalf of the Commission alleging that the privacy or security of consumers’ newspapers reported that Cambridge Facebook repeatedly used deceptive personal information” and was “required Analytica planned to use the data to disclosures and settings to undermine to obtain consumers’ affi rmative express develop comprehensive psychographic users’ privacy preferences in violation of consent before enacting changes that profi les of individuals in order to its 2012 FTC order.” override their privacy preferences,” infl uence voting behaviors in the The DOJ’s complaint for civil among other provisions. The full consent 2016 presidential election and Brexit penalties, injunction, and other relief, decree is available online at: https://www. referendum. which was fi led in the U.S. District Court ftc.gov/sites/default/fi les/documents/case On March 26, 2018, the FTC formally for the District of Columbia on July 24, s/2011/11/111129facebookagree.pdf. announced that it was investigating 2019, outlined several ways in which In August 2012, the FTC reached a whether Facebook’s failure to secure Facebook had violated the 2012 order, fi nal settlement with Facebook (2012 users’ data from unauthorized collection including that Facebook “did not disclose order), which required the company violated the 2011 consent decree and to users . . . that sharing their personal to “take several steps to make sure it 2012 order. In the March 26 press release, information with Friends would allow lives up to its promises in the future, FTC Bureau of Consumer Protection Facebook to share that information with including by giving consumers clear (BCP) Acting Director Tom Pahl said, third party developers of Friends’ apps.” and prominent notice and obtaining “The FTC is fi rmly and fully committed The complaint also alleged that Facebook their express consent before sharing to using all of its tools to protect the “failed to implement and maintain their information beyond their privacy privacy of consumers. Foremost among appropriate safeguards and controls over settings, by maintaining a comprehensive these tools is enforcement action against third party developers’ access to user privacy program to protect consumers’ companies that fail to honor their privacy information, and by obtaining biennial promises.” He continued, “Companies Facebook, continued on page 16 15 Facebook, continued from page 15 misrepresent its “collection, use, and Seventh, the FTC required Facebook disclosure” of private information and to create a “comprehensive privacy data,” including related to the Cambridge data, as well as the “extent to which a program . . . that protects the privacy, Analytica scandal. consumer can control the privacy of any confi dentiality, and Integrity of the The complaint alleged fi ve counts Covered Information . . . and the steps a Covered Information collected, used, against Facebook for violating the consumer must take to implement such or shared by [Facebook].” In addition 2012 order, including that the company controls,” among other provisions. to documenting the creation of risk misrepresented “the extent to which Second, the FTC included changes management programs, security a consumer can control the privacy of to prior rules regarding sharing safeguards, training, and other provisions any covered information maintained by of “nonpublic user information,” under the decision and order, Facebook [Facebook] and the steps a consumer meaning “User profi le information was required to “[d]esignate a qualifi ed must take to implement such controls” (i.e., information that a User adds employee or employees to coordinate and the “extent to which Facebook made to or is listed on a User’s Facebook and be responsible for the Privacy user data accessible to third parties,” profi le), or User generated content Program,” as well as assess “internal among other claims. The complaint (e.g., status updates, photos), that and external risks in each area of its also alleged one count in violation of is restricted by one or more Privacy operation.” The FTC further required that Section 5 of the FTC Act, 15 U.S.C. § 45, Setting(s).” The FTC now required that Facebook “[d]esign, implement, maintain, which prohibits “unfair or deceptive acts Facebook “[c]learly and [c]onspicuously and document” safeguards created or practices in or affecting commerce.” disclose . . . to [Facebook users], based on the internal and external risks The complaint claimed that Facebook separate and apart from any ‘privacy identifi ed by Facebook. The decision and “failed to disclose, or failed to disclose policy,’ ‘data use policy,’ ‘statement of order went on to provide several specifi c adequately, that [it] would . . . use rights and responsibilities’ page, or other requirements for how such safeguards phone numbers provided by users for similar document: (1) the categories of would be created and documented. two factor authentication for targeting Nonpublic User Information that will Eighth, the FTC required that an advertisements to those users.” The full be disclosed to [third parties], (2) the independent privacy committee be complaint is available online at: https:// identity . . . of [third parties], and (3) that created. According to the FTC’s July 24 www.ftc.gov/system/fi les/documents/ such sharing exceeds the restrictions press release, the committee was meant cases/182_3109_facebook_complaint_ imposed by the Privacy Setting(s) in to provide “greater accountability at the fi led_7 24 19.pdf. effect for the User.” The rules further board of directors level[,] . . . removing In a stipulated order also fi led on required that Facebook obtain users’ unfettered control by Facebook’s CEO July 24, 2019, the FTC and Facebook “affi rmative express consent” to disclose Mark Zuckerberg over decisions affecting “resolved the claims for civil penalties such information. user privacy.” The press release added, and injunctive relief set forth in the Third, the decision and order required “Members of the privacy committee Complaint.” The order included the that Facebook ensure that Covered must be independent and will be $5 billion monetary judgment for the Information could not be accessed appointed by an independent nominating civil penalty. In an attached decision by a third party within 30 days of the committee. Members can only be fi red by and order, the FTC imposed several time that a Facebook user deletes a supermajority of the Facebook board of requirements and prohibitions on such information or terminates their directors.” Facebook regarding consumers’ account. Facebook was also required Finally, the decision and order privacy and “Covered Information,” to delete such information within 120 included several additional requirements, which included “(a) a fi rst or last name; days of a user deleting the information including the creation and use of privacy (b) geolocation information suffi cient or terminating their account. Fourth, the program assessments, incident reports, to identify a street name and name of FTC prohibited Facebook from using compliance reporting and offi cers, among city or town; (c) an email address or and sharing user’s telephone numbers, other requirements. The full stipulated other online contact information, such which were generally meant to provide order and the decision and order are as an instant messaging User identifi er account security, for the purpose of available online at: https://www.ftc.gov/ or a screen name; (d) a mobile or other selling advertisements. Fifth, the FTC system/fi les/documents/cases/182_3109_ telephone number; (e) photos and videos; also prohibited Facebook from using facebook_order_fi led_7 24 19.pdf. (f) Internet Protocol (“IP”) address, User facial recognition technology unless On July 14, Facebook fi led a consent ID, or other persistent identifi er that can the company provides “clear and motion for entry of the stipulated order, be used to recognize a User over time conspicuous notice of its use of [such] meaning that Facebook “consent[ed] and across different devices, websites technology, and obtain[s] affi rmative to the request for the [District Court or online services; (g) a Social Security express user consent prior to any for the District of Columbia] to enter number; (h) a driver’s license or other use that materially exceeds its prior the Stipulated Order.” The motion government issued identifi cation number; disclosures to users.” read, “The proposed settlement (i) fi nancial account number; (j) credit Sixth, the decision and order memorialized in the Stipulated Order or debit information; (k) date of birth; required that Facebook “implement . . . a is fair, adequate, reasonable, and (l) biometric information; [and more.]” comprehensive information security appropriate. The proposed settlement First, the decision and order program that is designed to protect has two main components: a civil penalty prohibited Facebook from the security of Covered Information,” award and injunctive relief imposing “misrepresent[ing] in any manner, including safeguards related to the new compliance terms on Facebook. expressly or by implication, the extent “collection, storage, transit, or use” of Each component secures strong, pro to which [it] maintains the privacy Facebook users’ passwords and login consumer relief and refl ects months of or security of Covered Information.” credentials. intense negotiations following a detailed This meant that Facebook could not investigation of Facebook’s conduct.” 16 The motion added that it “addresses Department expects Facebook to treat In a July 26 statement, Edmund the issues that gave rise to the FTC its privacy obligations with the utmost Mierzwinski, Senior Director for Federal investigation in an effective and effi cient seriousness.” The FTC’s full press release Consumer Programs at the U.S. Public manner, obtaining immediate relief and is available online at: https://www.ftc.gov/ Interest Research Group (PIRG), also a massive civil penalty. The injunctive news events/press releases/2019/07/ftc criticized the proposed settlement. provisions of the settlement also are imposes 5 billion penalty sweeping new “This laughable $5 billion settlement carefully calibrated to ensure the privacy privacy restrictions. with the category killer social media of Facebook users’ data over the course In a July 24 post on the FTC’s giant Facebook makes the much of the next two decades, to prevent “Business Blog,” BCP senior attorney smaller Equifax settlement for sloppy further incidents of unauthorized data Lesley Fair posed the question of security look harsh,” he said. “Facebook sharing as much as possible, and to allow whether “the FTC [could] have won a intentionally collects and shares an for the taking of speedy and adequate bigger civil penalty by going to court?” ever growing matrix of information measures if user data is inadvertently Answering her own question, she stated, about consumers, their friends and compromised.” The full consent motion “Probably not. Judges tend to evaluate their interests in a mass surveillance is available online at: https://www.ftc.gov/ fi nancial remedies in comparison with business model. It routinely changes system/fi les/documents/cases/182_3109_ cases that have gone before it. That’s why its previous privacy promises without facebook_consent_motion_fi led_7 24 19. we think the fi nancial settlement is in the consent. It doesn’t adequately audit its pdf. public interest. It has the added benefi t of myriad business partners.” He added, In its July 24, 2019 press release, the establishing a new benchmark when the “Not changing those practices will come FTC explained why the fi ne and privacy FTC challenges privacy violations in the back to haunt the FTC, consumers and requirements were important. “The future.” the world.” settlement order announced today also However, several observers argued On July 26, 2019, the Electronic imposes unprecedented new restrictions that the FTC’s settlement with Facebook Privacy Information Center (EPIC) on Facebook’s business operations and did not go far enough. In a July 12 announced that it had fi led a motion to creates multiple channels of compliance,” interview with The Washington Post, intervene in the proposed settlement. In the press release read. “The order Rep. David Cicilline (D R.I.) called the a memorandum attached to the motion, requires Facebook to restructure its settlement a “slap on the wrist.” In a EPIC asserted that had previously fi led approach to privacy from the corporate series of tweets on July 12, Cicilline fi ve detailed complaints since 2012 with board level down, and establishes wrote, “The FTC just gave Facebook the FTC “regarding Facebook’s business strong new mechanisms to ensure that a Christmas present fi ve months practices, alleging violations of the [2012 Facebook executives are accountable for early.. . . This fi ne is a fraction of order].” However, EPIC argued that the decisions they make about privacy, Facebook’s annual revenue. It won’t under the FTC’s July 2019 settlement and that those decisions are subject make them think twice about their with Facebook, “[a]ll of these complaints, to meaningful oversight.” The press responsibility to protect user data. If the as well as many similar complaints release noted that the order also applied FTC won’t protect consumers, Congress brought to the Commission by consumer to WhatsApp, Instagram, and other surely must.” and privacy organizations representing properties owned by Facebook. Sen. Richard Blumenthal (D Conn.) the interests of Facebook users, would be FTC Chairman Joseph Simons praised similarly argued in a July 12 statement extinguished,” meaning the organization the settlement in the press release, that “[r]ather than deter misconduct, the should be allowed to intervene and have writing, “Despite repeated promises signal here is that the fi nes or monetary “a voice in the decision.” to its billions of users worldwide that penalties will be a fraction of what they The memorandum further argued they could control how their personal should be.” He added, “There is no reason that the dismissal of EPIC’s complaint information is shared, Facebook for optimism, let alone confi dence, by the proposed settlement would undermined consumers’ choices.” that the structural or conduct reforms “wipe[] Facebook’s slate clean without He continued, “The magnitude of the will be strong enough to really change Facebook even having to admit guilt for $5 billion penalty and sweeping conduct Facebook’s ongoing practices.” its privacy violations.” EPIC added that relief are unprecedented in the history of Sen. Ron Wyden (D Ore.) agreed. it had a “track record of disagreeing with the FTC. The relief is designed not only “Despite Republicans’ promises to hold the FTC’s approach to privacy issues,” to punish future violations but, more big tech accountable, the FTC appears meaning the FTC could not “claim to importantly, to change Facebook’s entire to have failed miserably at its best represent the interests of EPIC.” EPIC privacy culture to decrease the likelihood opportunity to do so,” Wyden said in a argued that if the court did not allow of continued violations. The Commission statement. “No level of corporate fi ne the organization to intervene, it should takes consumer privacy seriously, and can replace the necessity to hold Mark permit EPIC to fi le an amicus brief. will enforce FTC orders to the fullest Zuckerberg personally responsible The full motion and memorandum are extent of the law.” for the fl agrant, repeated violations available online at: https://epic.org/ Assistant Attorney General Jody of Americans’ privacy. That said, this privacy/facebook/EPIC Motion to Hunt for the DOJ’s Civil Division agreed, reported fi ne is a mosquito bite to a Intervene FTC Facebook Settlement.pdf. stating that the DOJ was “committed to corporation the size of Facebook.” As the Bulletin went to press, the FTC protecting consumer data privacy and Ashkan Soltani, who previously served had not reached a fi nal settlement with ensuring that social media companies as a chief technologist at the FTC, told Facebook, nor had the District Court for like Facebook do not mislead individuals the Post, “Democrats appear to want the District of Columbia ruled on EPIC’s about the use of their personal stronger accountability, both at the motion. information.” He called the settlement [corporate level] of the company and an “historic penalty . . . [that] will processes internally.” SCOTT M EMMEL benefi t American consumers, and the SILHA BULLETIN E DITOR 17 Debates Continue Over a Federal Data Privacy Law or Framework n the spring and summer of 2019, privacy of customers of edge providers.” that service “collects records.” The momentum for federal data privacy Finally, in October 2018, U.S. Rep. Ro Act would require the Federal Trade legislation intensifi ed during the Khanna (D Calif.) announced that he had Commission (FTC), within 180 days after 116th Congress, which saw several introduced an “Internet Bill of Rights,” the enactment of the bill, to “submit to data privacy bills introduced in the which sought to protect internet users’ the appropriate committees of Congress IU.S. Senate and House of Representatives. data privacy and security through six key detailed recommendations for privacy Meanwhile, two Congressional committees principles. (For more information on the requirements that Congress could impose held hearings regarding different topics actions by the tech companies, President on covered providers that would be and questions Trump, the NTIA, the CONSENT Act, substantially similar… to the requirements related to a federal and the “Internet Bill of Rights,” see Tech applicable to agencies under the Privacy DATA PRIVACY data privacy Companies, Trump Administration, and Act of 1974.” framework. On Feb. Congress Push for Federal Strategies or The Privacy Act, 5 U.S.C. § 552a(e), set 26, 2019, the House Frameworks Regarding Data Privacy and requirements for agencies maintaining a Consumer Protection and Commerce Cybersecurity in “Facebook, Google Fail system of records. For example, it required Subcommittee of the House Energy and to Protect Users’ Data; Tech Companies that agencies only retain information in Commerce Committee held a hearing titled and Federal Government Pursue Federal their records “relevant and necessary “Protecting Consumer Privacy in the Era Data Privacy Frameworks” in the Fall 2018 to accomplish” the agency’s purpose, of Big Data,” during which representatives issue of the Silha Bulletin.) collect information directly from the and witnesses discussed a number of The calls for a federal data privacy subject individual whenever practicable, issues, including federal preemption of law or framework grew out of actions and inform individuals of the reason state laws, objectives for a federal privacy by technology companies like Facebook for collection. Violations would be framework, concerns over increased and Google failing to protect their user’s considered “unfair or deceptive acts or regulation, and the authority for the personal data. Perhaps the most notable practices” under Section 5 of the FTC Act, Federal Trade Commission (FTC). One day example was the Cambridge Analytica 15 U.S.C. § 45, and would be enforced by later, the Senate Commerce, Science, and scandal in which Cambridge Analytica, a the FTC. As initially written, the American Transportation Committee held a hearing political data fi rm connected to President Data Dissemination Act would preempt titled “Policy Principles for a Federal Donald Trump’s 2016 campaign, harvested state laws. Data Privacy Framework in the United personal data from more than 50 million Second, the Social Media Privacy States,” which aimed to address concerns Facebook users without permission. In Protection and Consumer Rights Act over a potential federal data privacy March 2018, several news outlets reported of 2019, S. 189, was introduced by Sen. framework. Meanwhile, in February 2019, that Facebook was aware that Cambridge Amy Klobuchar (D Minn.) on Jan. 17, the U.S. Government Accountability Offi ce Analytica, the subsidiary of the British 2019. The Act would regulate online (GAO) released a report, which reviewed based political data analysis company SCL platform[s] “that collect personal data federal oversight of internet privacy, and Group, had gained unauthorized access. during the online behavior of a user of recommended comprehensive data privacy (For more information on Cambridge the online platform.” It would set up a legislation. Analytica, as well as other actions by system where “operators” of services must Previously, in fall 2018, technology Facebook and Google that put users’ inform users that their “personal data” and companies, President Donald Trump’s data at risk, see “Google Faces Renewed “online behavior . . . will be collected and administration, and Congress each took Concerns Regarding Data Privacy in the used by the operator and third parties,” actions towards a new federal law or U.S. and Abroad” and “Facebook Faces unless the user “makes an election . . . to framework protecting internet users’ Continued Scrutiny Over Data Privacy specify . . . privacy preferences.” The user privacy and security online. On Sept. 26, and Cambridge Analytica Scandal” in could “prohibit the collection and use of 2018, executives from companies including the Winter/Spring 2019 issue of the Silha personal data,” although “the operator Google, Amazon, and Apple, among others, Bulletin and “Facebook, Google Fail to of the online platform may deny certain appeared before the Senate Committee on Protect Users’ Data; Tech Companies and services or completely deny access to the Commerce, Science and Transportation Federal Government Pursue Federal Data user.” to discuss and advocate for a potential Privacy Frameworks” in the Fall 2018 S. 189 would require that operators federal privacy law. President Trump’s issue.) provide users with terms of service in an administration, as well as the National “easily accessible” form of “reasonable Telecommunications and Information Several U.S. Senators Introduce Bills length” using “language that is clear, Administration (NTIA), each published Related to Data Privacy concise, and well organized.” The Act different proposals for new approaches to Throughout 2019, several U.S. would also require operators to “establish protecting consumer data privacy. senators and representatives introduced and maintain a privacy or security On April 10, 2018, Sens. Edward legislation aimed at protecting program” for platforms and provide users Markey (D Mass.) and Richard Blumenthal individuals’ personal data online. First, with details of how their information (D Conn.) introduced the Customer on Jan. 16, 2019, Sen. Marco Rubio will be used, “how the operator will Online Notifi cation for Stopping (R Fla.) introduced the American Data address privacy risks,” and “details of the Edge Provider Network Transgressions Dissemination Act, S. 142, which would access that employees and contractors Act, or the CONSENT Act, which would regulate “covered provider[s],” meaning of the operator have” to the data. place responsibility on the FTC to “a person that . . . provides a service Additionally, the bill would enable users promulgate “regulations to protect the that uses the internet” and in providing to withdraw consent to the use of their 18 data, and operators would have to obtain The Act would regulate any entity collection, use, and retention policies, “affi rmative express consent” upon the with more than $50,000,000 in revenue including what and how personal introduction of a new product of change of that “possesses or controls personal information was being collected, used, service. Users would also be able to obtain information on more than 1,000,000 or retained, which third parties the a copy of their personal data collected free consumers.” The Act would require the information is shared with or sold to, and of charge.” Violations would be treated as FTC, within two years of its passage, to how an individual may access, correct unfair or deceptive acts or practices under promulgate regulations that “require each or delete that information. The notice the FTC Act, and the proposed Act would covered entity to conduct automated must be “clear, concise, well organized, grant enforcement to the FTC and state decision system impact assessments,” understandably written, and complete” in attorneys general. as well as “data protection impact a “prominent and easily accessible” format Third, on April 1, 2019, Rep. Suzan assessments” of any “high risk information “of reasonable length” at point of sale or DelBene (D Wash.) introduced the systems,” as frequently as the FTC fi nds “before the individual uses the product or Information Transparency & Personal necessary. Those assessments would be, service.” Data Control Act, H.R. 2013. The Act “if reasonably possible, in consultation The bill would also require covered would regulate “any controller that with external third parties, including entities to obtain opt in approval for use provides services to the public involving independent auditors and . . . technology of an individual’s personal information, the collection, storage, processing, experts.” However, publication of the subject to certain exceptions, such as sale, sharing with third parties, or other assessments by the covered entity is if the use is necessary to provide the use of sensitive personal information.” optional. In addition to FTC enforcement, requested product or service. Additionally, Controllers would have to provide the Act provided for enforcement by the the FTC would have the power to grant notice to users and obtain “affi rmative, states, through attorneys general, subject exemptions to specifi c entities, after taking express, and opt in consent” to collect, to a requirement that they notify the FTC. into account factors such as the privacy store, process, sell, and share sensitive Lastly, the bill contains a unique provision risks posed by the exemption, costs and personal information. Controllers would disclaiming any federal preemption of benefi ts, and the nature of the personal have to provide users with a “transparent state law: “[n]othing in this Act may be information. The bill would also require privacy, security, and data use policy” construed to preempt any State law.” the FTC to promulgate regulations to which is “concise and intelligible,” “clear Also on April 10, the Balancing the ensure users a right to access, correct, and prominent in appearance,” “uses Rights of Web Surfers Equally and delete, and move their data. clear and plain language,” and “uses Responsibly Act of 2019 was introduced by Section 11 of the “Privacy Bill of Rights” visualizations where appropriate to make Sen. Marsha Blackburn (R Tenn.). S. 1116 contains limitations on use of personal complex information understandable by regulates “broadband internet access information, including restrictions on the ordinary user,” and is “provided free of service[s]” or “an edge service” and would “profi ting from an individual’s biometric charge.” require that covered entities provide users information,” disseminating that Under H.R. 2013, controllers would with “clear and conspicuous” notice of information without permission, and using also be required to provide users with privacy policies, either at the point of personal information for discriminatory contact information, the purpose for the sale or before use of the service. Those advertising. Section 13 would require collection, any third parties with whom covered under the bill would be required covered entities “to establish and maintain the information will be shared, the storage to obtain “opt in approval” to “use, reasonable data security practices to period of the information, how consent disclose, or permit access to” sensitive protect the confi dentiality, integrity, and for its use may be withdrawn, how a user user information and “opt out approval” availability of personal information” and can view the information collected, what for non sensitive user information, subject disclose certain information to the public kind of “sensitive personal information” to a list of exceptions. Such exceptions about those practices. The Act would is collected and shared, whether that include disclosure for providing the largely be enforced by the FTC, with information will be used to create profi les service itself, billing, and protecting violations treated as unfair or deceptive about users, and how sensitive information the provider or users from “fraudulent, acts or practices under the FTC Act. State is protected from theft. Users would have abusive, or unlawful use of the service,” attorneys general could also bring civil the ability to opt out of any “collection, to disclose location information for public actions on behalf of citizens in their states, storage, processing, selling, sharing, safety reasons. subject to notice requirements. or other use” of their data at any time. S. 1116 would task the FTC with Importantly, the bill provides a private The Act contained several exemptions, enforcement, treating a violation of the Act right of action to individuals alleging including for small businesses that collect as an “unfair or deceptive act or practice” a violation. The bill stipulates that a or use information of 5,000 or fewer under the FTC Act. S. 1116 also contained violation constitutes “with respect to the individuals. The FTC and state attorneys an explicit preemption provision, requiring personal information of an individual general would be tasked with enforcement no state to “adopt, maintain, enforce, or constitutes an injury in fact to that of the Act. impose . . . any law, rule, regulation, duty, individual.” Plaintiffs could recover “actual Fourth, on April 10, 2019, the requirement, standard, or other provision damages,” “punitive damages,” “reasonable Algorithmic Accountability Act of 2019, S. having the force and effect of law relating attorney’s fees and costs,” and “any other 1108, was introduced by Sens. Ron Wyden to or with respect to the privacy of user relief, including an injunction, that the (D Ore.) and Cory Booker (D N.J.) with a information.” court determines appropriate.” House equivalent sponsored by Rep. Yvette Sixth, on April 11, 2019, Sen. Edward Gaurav Laroia, policy counsel for Free Clarke (D N.Y.). Under the Act, large Markey (D Mass.) introduced the “Privacy Press Action, a media rights advocacy companies would have to assess whether Bill of Rights,” S. 1214, which would group, praised the bill in an April 12 the algorithms they employ are biased regulate “any person that collects or interview with The Daily Dot. “Senator or discriminatory, as well as whether otherwise obtains personal information.” Markey’s bill will help enable people to use they pose a privacy or security risk to The bill would require that those covered Debates, continued on page 20 consumers. provide “short form notice” about data 19 Debates, continued from page 19 in addition to what kind of data it collects, framework to add clarity for businesses by whom it is collected, and how it is used and consumers, they differed on whether the internet without fear of exploitation or if not for a use “directly or exclusively such a framework should preempt state discrimination from companies intent on related to the online service” provided. law. Several witnesses also emphasized mining their private data,” he said. “People Operators would be required to provide that policymakers should consider must have the right to safely choose who users a way to “delete all data, in the business costs and anti competitive effects they give their personal information to and aggregate and for an individual fi eld,” stemming from any proposed regulation. need enforceable rules over how it can be that an operator possesses or maintains, Witnesses also proposed differing areas of used.” unless legally prohibited or necessary to focus for a federal framework. The seventh bill was the Do Not Track prevent other security incidents. The bill Federal preemption was a key Act, S. 1578, introduced by Sen. Josh would grant the FTC primary enforcement area of inquiry during the hearing as Hawley (R Mo.) on May 21, 2019. The Act, powers. representatives and witnesses noted the which would apply to websites, services, In a June 23, 2019 interview with Axios, diffi culty businesses face with having to or applications operating for commercial Sen. Mark Warner (D Va.) explained some comply with numerous state privacy laws. purposes in interstate commerce, would of the motivation behind the bill, including Rep. Cathy McMorris Rodgers (R Wash.) require the FTC to “implement and enforce that “[tech and social media] companies said in her opening statement, “Many a Do Not Track system . . . to protect take enormous, enormous amounts of data recognize the burdens multiple state laws consumers from unwanted online data about us.” He continued, “If you’re an avid would create. But what would it mean for harvesting and targeted advertising.” In Facebook user, chances are Facebook someone in Washington State who buys essence, individuals could download a knows more about you than the U.S. something online from a small business free program from the FTC’s website, government knows about you. People in Oregon to ship to their family in Idaho? which would send a “Do Not Track” don’t realize one, how much data is being This is a regulatory minefi eld that will signal to every website, online service, or collected; and two, they don’t realize how force businesses to raise prices on their online application the individual decides. much that data is worth.” customers. Setting one national standard Websites or services on the individual’s Charlie Warzel, a privacy advocate and makes common sense, and it’s the right list would be prohibited from collecting opinion writer for The New York Times, approach to give people certainty.” data unnecessary to the operation of the criticized the Act. “[A]ny effort to assign a Zheng agreed, adding that the website, using that data for a secondary dollar value to our millions of data points assumption that preemption would purpose, or sharing it with a third party scattered across the internet is inherently weaken existing protections is false. absent express consent, among other fl awed,” Warzel wrote in a June 25 Times “Devices, data, people, they constantly provisions. The Act would be enforced by story. “[T]he problem isn’t that most of us move across borders, across states,” Zheng the FTC. don’t care about our privacy; it’s that we emphasized. “A state by state approach Marc Rotenberg, president of the don’t always act in our own interests when just simply doesn’t work for this type of Electronic Privacy Information Center it comes to our data.” domain.” Layton also agreed. “[I]f you (EPIC), a nonprofi t that worked on Do Not As the Bulletin went to press, none of are a retailer in Maine and you have to Call legislation, was skeptical, suggesting the bills had been passed by the Senate or send your products to 50 different states that voluntary opt outs for data collection House of Representatives. and you have to set up 50 different ways have not worked. “The companies can to do it, I don’t see why you’d start that ignore voluntary participation, and House Consumer Protection and business,” Layton said. oftentimes it’s the biggest offenders who Commerce Subcommittee Holds Grimaldi also supported federal will,” Rotenberg said in a May 21 interview Hearing on Protecting Consumer preemption. “Without a consistent with the Associated Press (AP). Rotenberg Privacy in the Era of Big Data federal privacy standard, a patchwork of also suggested that an opt out program On Feb. 26, 2019, the U.S. House of state privacy laws will create consumer for the internet would be more diffi cult, Representatives Consumer Protection and confusion, present substantial challenges contending that although phone numbers Commerce Subcommittee of the House for businesses trying to comply with could easily be added to a list, internet Energy and Commerce Committee held these laws, and fail to meet consumers’ programs would need to cover emails and a hearing titled “Protecting Consumer expectations about their digital privacy,” potential IP addresses. Privacy in the Era of Big Data” to discuss he said. Finally, on June 25, 2019, Sens. Mark ideas and concerns regarding a potential Not all witnesses agreed, however. Warner (D Va.) and Josh Hawley (R Mo.) federal data privacy framework. Collins Dexter contended that any federal introduced the Designing Accounting According to a transcript of the hearing, legislation should “offer a baseline that Safeguards to Help Broaden Oversight several witnesses testifi ed, including does not preempt innovative state policy” and Regulations on Data (DASHBOARD) Brandi Collins Dexter, senior campaign especially when state laws regulate Act. S. 1578 covers “commercial data director for Color of Change, an online manipulative or exclusionary marketing operator[s],” which it defi ned as “an civil rights organization; Dave Grimaldi, practices. entity acting in its capacity as a consumer Executive Vice President for Public Policy Witnesses also highlighted differing online services provider or data broker at the Interactive Advertising Bureau; objectives for a federal privacy framework. that” generates revenue “from the use, Dr. Roslyn Layton, visiting scholar at the Collins Dexter emphasized that a collection, processing, sale, or sharing of American Enterprise Institute; Nuala framework should focus on regulating the user data.” The bill took a different O’Connor, president and CEO of the discriminatory advertising. “[U]ltimately, approach to data protection from the Center for Democracy and Technology, a we would like to see bipartisan legislation other introduced legislation, requiring non profi t dedicated to online civil liberties written through an anti discrimination “commercial data operators” to “provide and human rights; and Denise Zheng, Vice lens that prevents manipulative or each user . . . with an assessment of the President for Technology and Innovation exclusionary marketing practices that economic value that the commercial data at the Business Roundtable. Although each exacerbate poverty,” Collins Dexter said operator places on the data of that user,” witness agreed on the need for a federal in her opening statement. In response 20 to a question from Rep. Jerry McNerney also noted that consumers frequently Jonathan Cederbaum, D. Reed Freeman, (D Calif.) about what challenges give companies consent without fully Jr., and Lydia Lichlyter, attorneys companies face with respect to algorithms, understanding how the data will be specializing in privacy and cybersecurity Collins Dexter explained that “there’s a used. “More check boxes will provide matters at Wilmer Hale, an international lot of presumptions that algorithms can’t the appearance of choice, but not real law fi rm, there was broad consensus in be biased or that tech is neutral. And options for consumers,” O’ Connor argued. the hearing that “while the [California what we fi nd as history — a long history “[A]ny meaningful privacy legislation Consumer Privacy Act (CCPA)] and the of systemic inequities are actually being must fi rst prohibit unfair data practices, [General Data Protection Regulation inputted from our data points and then particularly the repurchasing or secondary (GDPR)] provide important points of replicating models of discrimination free use of sensitive data with carefully scoped reference for federal privacy standards, from accountability.” exceptions.” those models also refl ect overly Other witnesses stressed that With regard to enforcement of privacy prescriptive approaches that [could] harm policymakers focus on limiting any regulations, many representatives called innovation and competition.” anti competitive or industry effects for additional authority for the Federal The CCPA, 2018 Cal. Legis. Serv. Ch. 55 stemming from increased regulation. Trade Commission (FTC). Rep. Greg (A.B. 375) (West), which was set to take Layton asserted that since the enactment Walden (R Ore.), ranking member of the effect on Jan. 1, 2020, grants California of the European Union’s (EU) General House Energy and Commerce Committee, residents more control over how certain Data Protection Regulation (GDPR), said in his opening statement that “[w]e businesses use their personal information, “Google, Facebook and Amazon have can write bill after bill, and the FTC could including that California consumers to increased their market share,” an outcome publish rule after rule. But if we do not demand that businesses disclose any Layton criticized as “perverse . . . for a have effective enforcement, they are just personal information they have collected, policy promised to level the playing fi eld.” words on paper.” delete that information, and refrain from The GDPR took effect in May 2018 after selling or transferring it third parties. The being adopted by the EU in Spring 2016 Senate Commerce, Science, and GDPR, which took effect in May 2018, was to harmonize data privacy laws across Technology Committee Holds Hearing adopted to harmonize data privacy laws Europe and to protect EU citizen’s data on Policy Principles for a Federal across Europe and to protect EU citizen’s privacy rights. (For more information on Data Privacy Framework in the United data privacy rights. (For more information the GDPR, see “The United States, the States on the GDPR, see “The United States, the European Union, and the Irish High Court On Feb. 27, 2019, the U.S. Senate European Union, and the Irish High Court Wrangle Data Privacy Concerns” in the Commerce, Science, and Transportation Wrangle Data Privacy Concerns” in the Fall 2017 issue of the Silha Bulletin and Committee held a hearing titled “Policy Fall 2017 issue of the Silha Bulletin and Adopted EU General Data Protection Principles for a Federal Data Privacy Adopted EU General Data Protection Regulation Establishes ‘Right to Erasure’ Framework in the United States,” aimed Regulation Establishes ‘Right to Erasure’ in “Right to Be Forgotten Continues to at addressing concerns over a potential in “Right to Be Forgotten Continues to Create Challenges for Online Entities” in federal data privacy framework. Create Challenges for Online Entities” in the Summer 2016 issue.) According to a March 1 Wilmer Cutler the Summer 2016 issue.) Layton ultimately urged Congress to Pickering Hale and Dorr LLP commentary, In regard to federal preemption, “review the empirical research that the the Senate committee heard testimony Democrat and Republican senators Europeans ignored, namely, how privacy from Michael Beckerman, president generally disagreed about whether a enhancement technologies and user and CEO of the Internet Association, a federal framework should preempt state knowledge will promote online trust” lobbying group that represents several law. Many Republicans stressed the and to “incentivize the development of global internet companies; Brian Dodge, importance of preemption, including such technologies through grants and COO of the Retail Industry Leaders Committee chairman Sen. Roger Wicker competitions, and provide safe harbors for Association; Jon Leibowitz, a former (R Miss.) and Sen. Marsha Blackburn their research, development and practice.” Federal Trade Commission (FTC) (R Tenn.). Wicker contended that federal Zheng also emphasized the value of chairman and co chair of the 21st Century preemption would provide greater data in the economy both to businesses Privacy Coalition; Randall Rothenberg, certainty for users and stressed that and to the customers of those businesses, CEO of the Interactive Advertising Bureau, preemption would not mean weaker stating that “[d]ata enables companies to which represents digital advertising protections. He said, “It is important to deliver more relevant and valuable user companies; Victoria Espinel, president and note that a national framework does not experiences to consumers. It allows the CEO of the Software Alliance; and Woody mean a weaker framework.. . . Instead, companies to detect and prevent fraud on Hartzog, Professor of Law and Computer it means a preemptive framework that user accounts and combat cybersecurity Science at Northeastern University provides consumers with certainty that attacks.” School of Law. The witnesses all agreed they will have the same set of robust data In discussing costs of compliance on the need for federal legislation and protections, no matter where they are in for businesses, Rep. Ben Ray Lujan largely agreed that it should preempt the United States.” (D N.M) asked about the usefulness of state law, with the exception of Hartzog. By contrast, Sen. Maria Cantwell risk assessments as a regulatory measure Other topics of discussion included FTC (D Wash.) called the focus on preemption and how requiring them may impact enforcement authority, user consent, and “disturbing” and suggested that companies the marketplace. O’Connor responded the potential effects of regulation on the were attempting to erode the CCPA that legislators should be mindful of the economy. through federal preemption. She said, burden it places on small businesses and The committee members’ questions “I mean, are we here just because we that Congress should require a privacy mainly concerned how to maintain a don’t like the California law, and we just protection offi cer at companies which competitive marketplace while protecting want a federal preemption law to shut it process large amounts of data. She users. According to a commentary by Debates, continued on page 22 21 Debates, continued from page 21 affecting our attention, how we spend our Internet privacy,” but that the agency down? Or, do people think you can have time, how we become informed citizens, “ha[d] not issued regulations for Internet meaningful federal privacy legislation and how we relate to each other.” privacy other than those protecting without that?” Some privacy advocates were not fi nancial privacy and the Internet privacy Senators also asked witnesses about impressed with the lack of ideological of children, which were required by law.” their views on federal preemption. Hartzog diversity of those called to testify at The report identifi ed three main areas responded that federal legislation should both the Senate and House hearings. in which Internet privacy oversight could act “as a fl oor, not a ceiling for privacy Privacy advocates India McKinney and be enhanced, including: rules.” However, the other witnesses Katharine Trendacosta at the Electronic • “Statute. Some stakeholders told largely favored federal preemption of Frontier Foundation (EFF), a privacy GAO that an overarching Internet state privacy laws. Rothenberg suggested rights organization, wrote in a February privacy statute could enhance that federal preemption would promote 25 commentary that “both the House and consumer protection by clearly “consistency over chaos” but that the the Senate are holding hearings on this articulating to consumers, industry, states should still have a role to play topic, but unfortunately, instead of hearing and agencies what behaviors are in enforcement. Leibowitz argued in a variety of voices and perspectives on prohibited. his opening statement that “enacting this topic, once again, Congress decided • Rulemaking. Some stakeholders federal privacy legislation is necessary to hear mostly from tech companies.” said that regulations can provide in light of the patchwork of privacy bills They urged Congress to provide a private clarity, enforcement fairness, and being produced in legislatures around right of action, avoid preemption of state fl exibility. Offi cials from two other the country. That’s because what makes law, create “information fi duciaries,” and consumer protection agencies said the Internet magical is also what makes “empower users by giving back control their rulemaking authority assists it a poor subject for state legislation. It over their data.” in their oversight efforts and works connects individuals across state lines.” together with enforcement actions. Witnesses also expressed concerns U.S. Government Accountability • Civil penalty authority. Some that regulation would stifl e business. Offi ce Report Calls for stakeholders said FTC’s Internet Dodge noted that retailers rely heavily Comprehensive Legislation privacy enforcement could be more on personal information, which “helps Addressing Internet Privacy effective with authority to levy civil retailers decide how much merchandise In February 2019, the U.S. Government penalties for fi rst time violations of to buy, where it needs to be, and Accountability Offi ce (GAO) publicly the FTC Act.” when.” Rothenberg also stressed the released a report to the U.S. House of The report therefore concluded importance of data collection to Representatives Committee on Energy and that it was “an appropriate time for businesses while acknowledging that “data Commerce reviewing the state of federal Congress to consider comprehensive exchanges . . . can also be used to violate oversight of internet privacy. The report Internet privacy legislation.” The report consumer security and privacy.” was requested by Rep. Frank Pallone Jr. continued, “Although [the] FTC has been Additionally, committee members (D N.J.), the House Energy and Commerce addressing Internet privacy through its and witnesses addressed FTC authority. chairman, according to The Washington unfair and deceptive practices authority, Leibowitz agreed that the FTC should Post on Feb. 14, 2019. among other statutes, and other agencies have primary enforcement power with The report was prompted by have been addressing this issue using increased authority to issue fi nes for Facebook’s Cambridge Analytica Scandal industry specifi c statutes, there is no fi rst time violations. In her opening in April 2018. (For more information on the comprehensive federal privacy statute statement, Espinel argued that the “FTC Cambridge Analytica Scandal, see “Google with specifi c standards.” should continue to be the primary federal Faces Renewed Concerns Regarding The report added, “Comprehensive enforcer, but it needs new tools and Data Privacy in the U.S. and Abroad” and legislation addressing Internet privacy that the resources to carry out its mission “Facebook Faces Continued Scrutiny Over establishes specifi c standards . . . could effectively.” Leibowitz added that “strong Data Privacy and Cambridge Analytica help enhance the federal government’s protections should be backed up by Scandal” in the Winter/Spring 2019 issue ability to protect consumer privacy, strong enforcement authority for the of the Silha Bulletin and “Facebook, provide more certainty in the marketplace FTC,” including “the ability to impose civil Google Fail to Protect Users’ Data; Tech as companies innovate and develop penalties for violators for fi rst [offenses.]” Companies and Federal Government new products using consumer data, and The hearing also involved discussion Pursue Federal Data Privacy Frameworks” provide better assurance to consumers of how to obtain informed individual in the Fall 2018 issue.) that their privacy will be protected.” consent. Hartzog argued that more notice Following expert commentary and The full report is available online at: would not necessarily be helpful, stating interviews, including by University of https://www.gao.gov/assets/700/696437.pdf. that “[s]econd helpings of ‘I agree’ buttons, Minnesota Silha Center Director and As the Bulletin went to press, Congress intrepid . . . unreadable Terms of Use Silha Professor of Media Ethics and had not passed a federal data privacy law would not have prevented . . . the epidemic Law Jane Kirtley, the GAO concluded or framework. of data breaches, nor will they prevent the that the United States “does not have problems of manipulation, discrimination, a comprehensive Internet privacy law ERIC A RCH and oppressive surveillance that we face governing the collection, use, and sale or SILHA R ESEARCH A SSISTANT in the future of automation.” Hartzog other disclosure of consumers’ personal SCOTT M EMMEL information.” The report acknowledged contended that companies’ “demand SILHA BULLETIN E DITOR for personal information is negatively that the FTC “has the lead in overseeing
22 Supreme Court Rulings Address First Amendment and FOIA Questions n the summer of 2019, the U.S. The case arose after MNN aired a Second, Justice Kavanaugh Supreme Court ruled in three fi lm produced by DeeDee Halleck and explained that the First Amendment separate cases related to the Jesus Papoleto Melendez regarding and Supreme Court precedent establish First Amendment and Freedom MNN’s alleged neglect of the East that the Free Speech Clause prohibits of Information Act (FOIA), Harlem community. The fi lm was only abridgement of speech by the I5 U.S.C. § 552. On June 17, 2019, aired on public access channels government, not by private actors. The the Court determined that a private owned by Time Warner Entertainment Court’s “state action doctrine” therefore nonprofi t corporation designated Company, which was acquired in May differentiates the government from by New York 2015 by Charter Communications for individuals and private entities. SUPREME COURT City, N.Y. to $78.7 billion. After televising the fi lm, Justice Kavanaugh wrote that under NEWS operate public MNN received multiple complaints this doctrine, a private entity can access television about the fi lm’s content, prompting qualify as a state actor in a few limited channels was a MNN to temporarily suspend Halleck circumstances, including: “(i) when the private actor, meaning the corporation from using the public access channels. private entity performs a traditional, was not subject to First Amendment Following a separate dispute between exclusive public function, . . . (ii) when constraints on its editorial discretion. MNN and the two producers, the the government compels the private Manhattan Community Access network suspended Halleck and entity to take a particular action, . . . or Corp. v. Halleck, 139 S.Ct. 1921 Melendez from using all MNN services (iii) when the government acts jointly (2019). On June 24, 2019, the Court and facilities. with the private entity.” Halleck’s and ruled that a provision of the Lanham Halleck and Melendez summarily Melendez’ claim largely fell into the Act of 1946, 15 U.S.C. § 1052(a), sued MNN in the U.S. District Court fi rst category in that they argued that prohibiting the registration of for the Southern District of New MNN “exercises a traditional, exclusive “immoral[] or scandalous” trademarks York under 42 U.S.C. § 1983, alleging public function when it operates constituted viewpoint based that MNN had violated their First the public access channels on Time discrimination in violation of the Amendment free speech rights by Warner’s cable system in Manhattan,” First Amendment. Iancu v. Brunetti, restricting their access to the public according to Justice Kavanaugh. 139 S.Ct. 2294 (2019). Finally, on access channels due to the content He further explained that a private the same day, the Court held that of their fi lm. MNN moved to dismiss, entity does not qualify as a state actor if Exemption 4 of FOIA allows a federal arguing that it was not a state actor “the federal, state, or local government agency to withhold “confi dential” and, therefore, was not subject to First [merely] exercised the function in the fi nancial information when it is Amendment restrictions on its editorial past, or still does.” He added that it “customarily and actually” treated as discretion. Although the district court is also “not enough that the function private by the owner of the information agreed and dismissed Halleck’s and serves the public good or the public and is provided to the government Melendez’s First Amendment claim, interest in some way.” Instead, the under an assurance of privacy. Food the U.S. Court of Appeals for the government must have “traditionally Marketing Institute v. Argus Leader Second Circuit reversed, fi nding that and exclusively performed the Media, 139 S.Ct. 2356 (2019). public access channels in Manhattan function” (emphasis in original), with were a public forum for the purposes “very few” functions falling into this Supreme Court Rules Private of the First Amendment. Manhattan category. Justice Kavanaugh held that Operator of New York Public Community Access Corp. v. Halleck, the operation of public access channels Access Television Channels are Not 882 F.3d 300 (2nd Cir. 2018). The on a cable system “has not traditionally Subject to First Amendment question before the Supreme Court was and exclusively been performed by On June 17, 2019, the U.S. Supreme whether “private operators of public government,” asserting that since the Court ruled in a 5 4 vote along party access cable channels are state actors 1970s, “a variety of private and public lines that Manhattan Neighborhood subject to the First Amendment.” actors have operated public access Network (MNN), a private nonprofi t Justice Brett Kavanaugh wrote the channels.” corporation designated by New Court’s majority opinion. He fi rst cited Third, Justice Kavanaugh addressed York City, N.Y. to operate public the Cable Communications Policy Act the producers’ argument that the access television channels on the of 1984, which authorized state and relevant function at issue was not only local cable system, was a private local governments to require cable the operation of public access channels actor and, therefore, not subject to operators to set aside channels on on a cable system, but instead the First Amendment constraints on their cable systems for public access. more general function of operating a its editorial discretion. Manhattan 47 U.S.C. § 531(b). In New York State, public forum for speech, which would Community Access Corp. v. Halleck, the Public Service Commission requires qualify as a “traditional, exclusive 139 S.Ct. 1921 (2019). In a dissenting cable operators to set aside channels public function.” Justice Kavanaugh opinion, Justice Sonia Sotomayor on their cable systems for public rejected this argument, fi nding that argued that MNN qualifi ed as a state access, according to Kavanaugh. He “merely hosting speech by others is not actor, and was, as a result, subject added that a cable operator operates a traditional, exclusive public function to the First Amendment, because it the public access channels unless the and does not alone transform private administered a public forum opened by local government in the area chooses to entities into state actors subject to First do so itself. New York City. Rulings, continued on page 24 23 Rulings, continued from page 23 by the government to administer a restricting access to student groups constitutional public forum.” that share different views from the Amendment constraints.” He reasoned More specifi cally, Justice Sotomayor company. Justice Sotomayor argued that when a private entity provides a argued that the public access channels that the nonprofi t in the example was forum for speech, it is “not ordinarily were “clearly a public forum” because indistinguishable from MNN and that constrained by the First Amendment New York City “ha[d] a property the First Amendment should not have because the private entity is not a state interest in them” and that New York been rendered irrelevant in this case. actor,” in contrast to the government State regulations “require[d] that access She therefore concluded that “as long being restrained from viewpoint based to those channels be kept open to all.” as MNN continues to wield the power it discrimination when providing a public She concluded that the public access was given by the government, it stands forum. The result is that the private channels constituted a “designated” in the government’s shoes and must entity may exercise editorial discretion public forum, meaning one that exists abide by the First Amendment like any over the speech and speakers in the where “the government has deliberately other government actor.” forum, according to Justice Kavanaugh, opened up the setting for speech by at The full majority and dissenting who cited several cases, including least a subset of the public.” opinions are available online at: Miami Herald Publishing Co. v. Therefore, because MNN took on https://www.supremecourt.gov/ Tornillo , 418 U. S. 241, 256 (1974), in the responsibility of administering the opinions/18pdf/17 1702_h315.pdf. which the Court struck down a Florida forum, it became a state actor subject In a June 17 commentary, Gibson, law requiring newspapers to allow to the First Amendment, according Dunn & Crutcher LLP argued that equal space for political candidates’ to Justice Sotomayor. She added that the case was signifi cant in that it replies to political coverage, reasoning because New York City “(1) had a duty determined that “[m]erely operating a that it was an “intrusion into the to provide that public forum once it public forum does not make a private function of editors.” The Court granted a cable franchise and (2) had a entity into a state actor under the found that “press responsibility is duty to abide by the First Amendment traditional test for state action because not mandated by the Constitution once it provided that forum,” those operating a public speech forum is not and . . . cannot be legislated.” obligations did not disappear when the a traditional, exclusive public function.” Fourth, Justice Kavanaugh held that City delegated the administration and In a June 24 press release, Nora New York’s “heavy regulation” of MNN operation of that forum to a private Benavidez, director of U.S. Free does not establish the network as a entity. She continued, “Just as the City Expression Programs at PEN state actor. He wrote that “[n]umerous would have been subject to the First America Center, Inc. (PEN America), private entities in America obtain Amendment had it chosen to run the argued that the ruling “could have government licenses, government forum itself, MNN assumed the same broader consequences if applied contracts, or government granted responsibility when it accepted the in other contexts,” including the monopolies.” If such regulation suffi ced delegation.” internet. “Although this case does not to transform these entities into private Finally, Justice Sotomayor addressed reference social media explicitly, like actors, according to Justice Kavanaugh, several of the majority’s arguments, the Manhattan Community Access “a large swath of private entities in including that “when a private entity Corporation, YouTube, Facebook, and America would suddenly be turned into provides a forum for speech, the private Twitter are private companies that state actors and be subject to a variety entity is not ordinarily constrained by provide essentially public forums,” he of constitutional constraints on their the First Amendment.” Although she said. “This ruling could therefore have activities.” acknowledged that this assertion was implications for questions of company Finally, Justice Kavanaugh addressed “surely correct,” Justice Sotomayor liability for the content shared on Halleck’s and Melendez’ fi nal argument contended that the case involved a their platforms. At a moment when that the public access channels were “constitutional forum,” rather than proliferating hate speech and abuse the property of New York City, rather spaces where private entities simply online are causing many to question than Time Warner or MNN. He found invite others to speak. She fi rst how and to what degree social media that “[n]othing in the record” suggested provided the example of a comedy companies should be held accountable, that any level of government owned club being able to decide to “open its this ruling puts down a marker on or leased the cable system or public doors as wide as it wants” versus MNN, questions of liability of private actors access channels. However, Justice which was asked by the government for First Amendment violations in one Kavanaugh noted that in instances to administer a “constitutional of the great debates of our time.” where the local government decides to responsibility” on its behalf. Previously, on Dec. 13, 2018, Reuters operate public access channels, they Justice Sotomayor then provided reported that the Electronic Frontier may be subject to First Amendment a second example in which a state Foundation (EFF), among several other constraints. college runs a comedy showcase companies and organizations, had fi led In a dissenting opinion joined by each year. As part of the showcase, an amicus brief in the case. In its brief, Justices Ruth Bader Ginsburg, Stephen the college rents a local theater EFF urged the Supreme Court to “rule Breyer, and Elena Kagan, Justice and mandates “open access” to narrowly” because internet companies Sotomayor wrote that the majority student activities pursuant to state could be implicated by the Court’s “[told] a very reasonable story about regulations. However, within a few ruling, potentially leading to a “very a case that is not before us. I write to years, the college decides to hire a different” internet. address the one that is.” She contended performing arts nonprofi t to run the EFF contended that “private that the case was not about a “private show, with the nonprofi t summarily operators of online platforms should property owner that simply opened deciding to only allow humor that remain exactly that, private operators” up its property to others,” but instead targets “a certain political party,” so that they can continue to have “a about an “organization appointed 24 First Amendment right to edit and viewpoint based discrimination in propriety”; “giving offense to the curate their sites, and thus exclude violation of the First Amendment. conscience or moral feelings”; “calling whatever other private speakers or Iancu v. Brunetti, 139 S.Ct. 2294 out for condemnation”; “disgraceful”; speech they choose.” The brief further (2019). The ruling followed similar “offensive”; “disreputable”; or “vulgar.” argued that “reversing the application reasoning by the Court in Matal v. Tam , The PTO examining attorney of the First Amendment — that is, 137 S.Ct. 1744 (2017), in which the and the PTO’s Trademark Trial and to make online platforms no longer provision of the Lanham Act prohibiting Appeal Board held that Bruentti’s protected by the First Amendment “disparag[ing]” trademarks was also trademark had failed the test, fi nding but instead bound by it as if they struck down. However, in Iancu, three that the FUCT trademark was “a were government entities — would justices wrote opinions concurring total vulgar[ity]” and “therefore[] undermine Internet users’ interests” unregistrable.” The (emphasis in original) in two ways, Board, on review, including fi rst that online platforms “Had [Manhattan Community Access further stated that would no longer be able to moderate Corp. v. Halleck ] come out differently, it the trademark their own content. Second, the creation might have led strength to the argument was “highly of new online platforms would be offensive” and limited due to the legal uncertainty of that large companies like Facebook, “vulgar,” and that operating a public forum. YouTube and Google should have to it had “decidedly The brief ultimately argued that negative sexual there can, and should, only be state comply with the First Amendment.. . . I connotations,” action if there is “some signifi cant think it’s a court that very much sees a adding that governmental connection to the bright line between government conduct imagery on operation or use of that forum.” The Brunetti’s website full brief is available online at: https://z. and private conduct. So long as it’s a also demonstrated umn.edu/EFFamicusbrief. private entity, the First Amendment that the name During a “First Amendment doesn’t apply.” communicated Roundup” hosted by the Los “misogyny, Angeles County Bar Association on depravity, [and] June 20, University of California, — Erwin Chemerinsky, University of California, violence.” Berkeley School of Law Dean Erwin Berkeley School of Law Dean Brunetti brought Chemerinsky argued that the Supreme a facial challenge Court ruling meant that internet to the “immoral companies remained private entities. in part and dissenting in part that or scandalous” bar in the U.S. Court “Had the case come out differently, it suggested ways in which a portion of of Appeals for the Federal Circuit. In might have led strength to the argument the provision could be constitutional April 2015, a three judge panel for the that large companies like Facebook, under the First Amendment. Federal Circuit initially affi rmed the YouTube and Google should have to The case revolved around artist and PTO’s decision. In re Tam , 758 F.3d comply with the First Amendment,” entrepreneur Erik Brunetti’s use of the 567 (Fed. Cir. 2015). However, the full Chemerinsky said. “I think it’s a court trademark “FUCT” for the name of his Federal Circuit voted to rehear the case that very much sees a bright line clothing line. According to Brunetti, en banc and found that the prohibition between government conduct and the mark is pronounced as four letters, violated the First Amendment. In Re: private conduct. So long as it’s a private one after the other: F U C T. However, Brunetti, 877 F.3d 1330 (2017). entity, the First Amendment doesn’t as Justice Elena Kagan wrote in her Justice Kagan fi rst turned to the apply.” majority opinion, the name could also Supreme Court’s 2017 ruling in Tam, Technology information blog be read as “the equivalent of [the] past which revolved around Simon Shiao “TechDecisions” agreed in a July 3, participle form of a well known word of Tam’s naming his all Asian American 2019 commentary, contending that profanity.” dance rock band “The Slants” in order under the Supreme Court’s ruling, The Lanham Act allows the U.S. to “reclaim” and “take ownership” of “Facebook, Twitter, and other social Patent and Trademark Offi ce (PTO) to Asian stereotypes. In this case, the platforms would not qualify as a state administer a federal registration system PTO denied a trademark because the actor as they do not traditionally and for trademarks. Although registering name “would likely be disparaging exclusively perform a public function. a trademark is not mandatory, it towards ‘persons of Asian descent,’” Thus, they are free to regulate speech comes with several benefi ts, including in violation of the “Disparagement on their platforms.” serving as a “constructive notice of the Clause” of the Lanham Act. The clause registrant’s claim of ownership.” At prohibited trademarks that “[consist] Provision of the Lanham issue was a provision that prohibited of or [comprise] immoral, deceptive, Act Prohibiting “Immoral or registration of trademarks that or scandalous matter; or matter which Scandalous” Trademarks Struck “[c]onsist[] of or comprise[] immoral[] may disparage or falsely suggest a Down by Supreme Court or scandalous matter.” The PTO connection with persons, living or On June 24, 2019, the U.S. determines whether a trademark dead, institutions, beliefs, or national Supreme Court held that a provision fi ts into the ban on “immoral or symbols, or bring them into contempt, of the Lanham Act of 1946, scandalous” marks by asking whether or disrepute.” (For more information on 15 U.S.C. § 1052(a), prohibiting a “substantial composite of the general the facts of the case, the Federal Circuit the registration of “immoral[] or public” would fi nd the mark “shocking scandalous” trademarks constituted to the sense of truth, decency, or Rulings, continued on page 26 25 Rulings, continued from page 25 VIOLENCE and SAY NO TO DRUGS— containing the most vulgar, profane, or REALITY IS THE BEST TRIP IN LIFE,” obscene words and images imaginable.” en banc decision, and the Supreme demonstrating that the restriction on Justice Sotomayor agreed with the Court granting certiorari, see “United speech was viewpoint based. majority that there was “no tenable States Supreme Court Set to Hear Oral Third, Justice Kagan addressed the way” to read the term “immoral” that Arguments on Disparaging Trademarks” government’s argument that the bar would change it from a viewpoint based in the Fall 2016 issue of the Silha should be narrowed to only include restriction on speech. However, Bulletin.) “marks that are offensive [or] shocking although she acknowledged that The Court ultimately held in an 8 0 to a substantial segment of the public “scandalous” could mean similar ruling that the Disparagement Clause because of their mode of expression, things to “immoral,” it could also just “violate[d] the Free Speech Clause independent of any views that they be read to mean trademarks that are of the First Amendment [because it] may express” (emphasis on original). “simply indecent, shocking, or generally offend[ed] a bedrock First Amendment She explained that the government had offensive,” meaning that it would cover principle: Speech may not be banned explained during oral arguments that only “offensive modes of expression, on the ground that it expresses “this reinterpretation would mostly rather than also implicating offensive ideas that offend.” The Court further restrict the PTO to refusing marks that ideas” (emphasis added). Justice held that the clause constituted are ‘vulgar’ — meaning ‘lewd,’ ‘sexually Sotomayor further contended that viewpoint based discrimination and explicit or profane.’” the portion of the clause addressing that the government’s interest in Justice Kagan dismissed the “scandalous” trademarks could be “preventing speech expressing ideas proposal, reasoning that the statutory read to only address “obscenity, that offend . . . strikes at the heart of language “d[id] not draw the line at vulgarity, and profanity.” She added the First Amendment. Speech that lewd, sexually explicit, or profane that Congress “meant for ‘scandalous’ demeans on the basis of race, ethnicity, marks” and, furthermore, did not to target a third and distinct type of gender, religion, age, disability, or any “refer only to marks whose ‘mode of offensiveness: offensiveness in the other similar ground is hateful; but expression,’ independent of viewpoint, mode of communication rather than the the proudest boast of our free speech [are] particularly offensive.” idea” and, therefore, disagreed with the jurisprudence is that we protect the Finally, Justice Kagan concluded majority’s collapsing of “scandalous” freedom to express ‘the thought that that the “immoral or scandalous” and “immoral.” we hate,’” citing Justice Oliver Wendell bar was “substantially overbroad,” Justice Sotomayor clarifi ed that by Holmes’ famous dissenting opinion in contending that “[t]here are a great “obscenity, vulgarity, and profanity,” she United States v. Schwimmer, 279 U. S. many immoral and scandalous ideas meant the “small group of lewd words 644, 655 (1929). (For more information in the world (even more than there or ‘swear’ words that cause a visceral on the Supreme Court’s ruling in Tam , are swearwords), and the Lanham Act reaction, that are not commonly see Individuals and Organizations covers them all. It therefore violates the used around children, and that are Have The Right to Utilize Potentially First Amendment.” prohibited in comparable settings,” Disparaging Terms as Trademarked In a short concurring opinion, though she declined to “offer a list.” She Names in “U.S. Supreme Court Rules Justice Samuel Alito, who wrote cited 18 U.S.C. § 1464, which prohibits in Two Signifi cant First Amendment the majority opinion in Tam , agreed “obscene, indecent, or profane Cases” in the Summer 2017 issue of the with the court that the “immoral language” in radio communications. Silha Bulletin.) or scandalous” clause violated the Justice Sotomayor concluded that Second, Justice Kagan turned First Amendment. He wrote that this interpretation of “scandalous” to the present case, writing that viewpoint based discrimination “is would be a “viewpoint neutral form “[i]f the ‘immoral or scandalous’ bar poison to a free society” and that “[a]t a of content discrimination that is similarly discriminates on the basis time when free speech is under attack, permissible in the kind of discretionary of viewpoint, it must also collide with it is especially important for this Court governmental program or limited our First Amendment doctrine.” She to remain fi rm on the principle that forum typifi ed by the trademark explained that the government did not the First Amendment does not tolerate registration system.” She provided challenge that the provision amounted viewpoint discrimination.” several examples in which the to viewpoint based discrimination and Justice Alito added that the Court’s Court had held that restrictions on further found that the Lanham Act decision would not “prevent Congress particular modes of expression do not “allows registration of marks when from adopting a more carefully focused inherently qualify as viewpoint based their messages accord with, but not statute that precludes the registration discrimination, though they may be when their messages defy, society’s of marks containing vulgar terms that “content based.” One example she sense of decency or propriety,” play no real part in the expression provided was that a ban on setting fi res resulting in “facial viewpoint bias in the of ideas,” but emphasized that the in a town square “does not facially law.” justices “are not legislators and cannot violate the First Amendment simply Justice Kagan provided several substitute a new statute for the one because it makes it marginally harder examples of trademarks that had now in force.” for would be fl ag burners to express been denied by the PTO under the In an opinion concurring in part their views in that place,” citing R.A.V. immoral or scandalous bar, including and dissenting in part, Justice Sonia v. St. Paul , 505 U.S. 377, 385 (1992). because they discussed drug use. Sotomayor, joined by Justice Stephen Another example provided by Justice However, Justice Kagan also provided Breyer, argued that the majority opinion Sotomayor was that “‘fi ghting words the example of the PTO registering would mean the PTO would have “no are categorically excluded from the trademarks with sayings such as statutory basis to refuse (and thus no protection of the First Amendment’ “D.A.R.E. TO RESIST DRUGS AND choice but to begin) registering marks not because they have no content or 26 express no viewpoint . . ., but because 18 U.S.C.§§ 704 (b)(c), that made lying Roberts continued, “No speech is being ‘their content embodies a particularly about receiving military awards or restricted; no one is being punished. intolerable (and socially unnecessary) medals, especially the Congressional The owners of such marks are merely mode of expressing whatever idea Medal of Honor, a crime punishable denied certain additional benefi ts the speaker wishes to convey.’” Thus, by a fi ne and up to a year in jail. The associated with federal trademark although a restriction on trademarks Court held that “the remedy for speech registration.” containing obscenity, vulgarity, or that is false is speech that is true,” not The full ruling by the Supreme profanity may be content based, it government suppression, even when Court is available online at: is not a viewpoint based restriction the speech “can disparage, or attempt https://www.supremecourt.gov/ on speech, according to Justice to steal, honor that belongs to those opinions/18pdf/18 302_e29g.pdf. Sotomayor, because the government who fought for this nation in battle.” On June 24, Ars Technica noted that has an interest in “not promoting (For more information on Alvarez, see the Court “left open the possibility that certain kinds of speech.” “Supreme Court Strikes Down Stolen Congress could ban a narrower class Finally, Justice Sotomayor Valor Act” in the Summer 2012 issue of of trademarks that are lewd, sexually contended that the First Amendment the Silha Bulletin.) explicit, or profane. If Congress chose protects Brunetti’s right to use words Applying this reasoning, Justice to pass such a law, then trademarks like “FUCT,” but does not require or Breyer held that the Lanham Act did using the F word might once again be force the PTO to grant his trademark not violate the First Amendment. excluded from registration.” and provide “the ancillary benefi t of He reasoned that the harm to First In an opinion analysis for trademark registration.” Amendment interests by declining to “SCOTUSblog” on the same day, Justice Breyer also wrote an opinion register vulgar or obscene trademarks University of New Hampshire School concurring in part and dissenting in was minimal, adding that the Lanham of Law dean and professor Megan part in which he largely agreed with Act “leaves businesses free to use Carpenter argued that the outcome was Justice Sotomayor, though he wrote highly vulgar or obscene words on “the most likely one” in light of Tam . that his reasons “differ[ed] slightly their products, and even to use such She wrote, “To hold otherwise could from hers.” Justice Breyer argued that words directly next to other registered have produced an anomalous situation he would “place less emphasis on marks.” Justice Breyer also found in which the only types of ‘offensive’ trying to decide whether the statute that “a business owner might even trademarks that could be registered at issue should be categorized as an use a vulgar word as a trademark, are ones that disparage particular example of ‘viewpoint discrimination,’ provided that he or she is willing to individuals or groups of people.” ‘content discrimination,’ ‘commercial forgo the benefi ts of registration.” He Carpenter added, “[W]hether or not speech,’ ‘government speech,’ or the contended that the PTO had at least Congress steps in at this point remains like” and instead treat the Supreme a “reasonable interest” in barring the to be seen.” Court’s “speech related categories registration of such trademarks, citing As the Bulletin went to press, not as outcome determinative rules, “scientifi c evidence [that] suggests Congress had not introduced or passed but instead as rules of thumb.” He that certain highly vulgar words have a legislation addressing immoral or explained that in the present case, the physiological and emotional impact that scandalous trademarks. restriction on speech did not fi t easily makes them different in kind from most into any of these existing categories. other words.” Justice Breyer therefore Supreme Court Holds FOIA Justice Breyer further explained supported Justice Sotomayor’s Exemption 4 Protects Confi dential that in some cases, such as Morse v. construction of the statute. Financial Information “Customarily Frederick, 551 U.S. 393, 397 (2007), Also in an opinion concurring in part and Actually” Treated as Private the Court found that the regulation and dissenting in part, Chief Justice On June 24, 2019, the U.S. of speech, even when it constituted John Roberts agreed with the majority Supreme Court held in a 6 3 ruling viewpoint based discrimination, was that the “immoral” portion of clause that Exemption 4 of the Freedom of constitutional under the strict scrutiny was “not susceptible of a narrowing Information Act (FOIA), 5 U.S.C. § standard. In Morse, the Court held that construction that would eliminate 552(b)(4), allows a federal agency to “schools may take steps to safeguard its viewpoint bias.” However, Chief withhold “confi dential” commercial those entrusted to their care from Justice Roberts also agreed with Justice or fi nancial information when it is speech that can reasonably be regarded Sotomayor, arguing that the term “customarily and actually” treated as as encouraging illegal drug use.” “scandalous,” standing alone, “need private by the owner of the information Justice Breyer contended that in a not be understood to reach marks and is provided to the government “number of cases,” the Court had struck that offend because of the ideas they under an assurance of privacy. Food down “ordinary, valid regulations that convey; it can be read more narrowly to Marketing Institute v. Argus Leader pose little or no threat to the speech bar only marks that offend because of Media, 139 S.Ct. 2356 (2019). In interests that the First Amendment their mode of expression — marks that an opinion concurring in part and protects.” He would, as a result, are obscene, vulgar, or profane.” dissenting in part, Justice Stephen instead ask “whether the regulation He further argued that refusing Breyer contended that Exemption 4 at issue ‘works speech related obscene, vulgar, or profane trademarks should require a showing of at least harm that is out of proportion to its would not offend the First Amendment, some harm. justifi cations,’” citing his concurring reasoning that whether such The case arose when the Argus opinion in United States v. Alvarez, trademarks could be registered “does Leader, a newspaper in South 567 U.S. 709, 730 (2012), in which not affect the extent to which their Dakota, fi led a FOIA request for data the Court struck down a federal law owners may use them in commerce known as the “Stolen Valor Act,” to identify goods.” Chief Justice Rulings, continued on page 28 27 Rulings, continued from page 27 for the Eighth Circuit, which affi rmed reasoning that the government, in the district court. Argus Leader Media order to induce retailers to participate collected by the U.S. Department of v. United States Dept. of Agriculture , in SNAP and provide to the USDA Agriculture (USDA) regarding the 889 F. 3d 914, 915 (8th Cir. 2018). store level information, “has long national food stamp program titled Justice Neil Gorsuch delivered the promised them that it will keep their “Supplemental Nutrition Assistance majority opinion of the Supreme Court. information private.” Therefore, Justice Program” (SNAP). The FOIA request He fi rst explained that the Eighth Gorsuch concluded that the data at sought names and addresses of all retail Circuit had “engrafted onto Exemption issue qualifi ed as “confi dential” data stores that participated in SNAP, as well 4 a so called ‘competitive harm’ test, under Exemption 4. as each store’s “redemption data” from under which commercial information Fourth, Justice Gorsuch turned to 2005 to 2010, referred to as “store level cannot be deemed ‘confi dential’ the “substantial competitive harm” SNAP data.” unless disclosure is ‘likely . . . to cause requirement, which, according to The USDA released the names and substantial harm to the competitive Justice Gorsuch, arose in 1974 when addresses, but refused to disclose position of the person from whom the the D.C. Circuit ruled that, in addition the store level SNAP data. The USDA information was obtained’” (emphasis to the requirements actually set forth cited Exemption 4, which, according added). in Exemption 4, a “court must also be to the U.S. Department of Justice Second, Justice Gorsuch held that satisfi ed that non disclosure is justifi ed (DOJ) website, protects “trade the Institute had Article III standing by the legislative purpose which secrets and commercial or fi nancial under the U.S. Constitution to pursue underlies the exemption.” National information obtained from a person the appeal, reasoning that although the Parks & Conservation Assn. v. Morton, [that is] privileged or confi dential” issue before the Court was whether 498 F.2d 765, 767 (9th Cir. 1974). Several (emphasis added). The exemption its member retailers would suffer additional federal circuit courts, covers “two distinct categories of “substantial competitive harm,” there including the Eighth Circuit, adopted information in federal agency records, was no doubt that the disclosure of the the two part test, which provided that (1) trade secrets, and (2) information SNAP data would cause “some fi nancial “commercial or fi nancial matter is that is (a) commercial or fi nancial, injury” (emphasis in original). ‘confi dential’ [only] if disclosure of the and (b) obtained from a person, Third, Justice Gorsuch concluded information is likely . . . (1) to impair and (c) privileged or confi dential,” that because FOIA does not defi ne the Government’s ability to obtain according to the DOJ. the term “confi dential,” the Court necessary information in the future; In 2016, the U.S. District Court must determine what the term’s or (2) to cause substantial harm to the for the District of South Dakota held “ordinary, contemporary, common competitive position of the person from a two day bench trial to determine meaning” was when Congress enacted whom the information was obtained.” whether disclosure of the store level FOIA in 1966, citing Perrin v. United Justice Gorsuch wrote that the SNAP data would cause substantial States, 444 U.S. 37, 42 (1979). Justice Court could not “approve such a casual competitive harm to participating Gorsuch concluded that the term disregard of the rules of statutory stores and retailers. During the trial, the meant “private” or “secret” and must interpretation” and refused to “alter USDA testifi ed that “retailers closely meet two conditions, including that FOIA’s plain terms on the strength only guard store level SNAP data and that the information “communicated to of arguments from legislative history.” disclosure would threaten stores’ another remains confi dential whenever He called the D.C. Circuit’s approach competitive positions,” including it is customarily kept private . . . by a “relic from a ‘bygone era of statutory because store level SNAP data “could the person imparting it” and that the construction,’” including because the create a windfall for competitors” for information “might be considered court had “relied heavily on statements three reasons: confi dential only if the party receiving from witnesses in congressional 1. retailers with high SNAP it provides some assurance that it will hearings years earlier on a different bill redemptions could see increased remain secret.” Taken together, the that was never enacted into law.” competition for SNAP customers two conditions posit that the fi nancial Finally, Justice Gorsuch rejected from existing competitors information is “customarily and several arguments by the Argus Leader 2. new market entrants could use actually” treated as private. to salvage the reasoning of the D.C. SNAP data to determine where Justice Gorsuch found that the Circuit, including that Congress had to build their stores Institute had met the fi rst condition “effectively ratifi ed its understanding 3. competitors could use SNAP because its retailers “customarily do of the term ‘confi dential’ by enacting data to determine a rival not disclose store level SNAP data or similar phrases in other statutes in the retailer’s overall sales and to make it publicly available ‘in any way.’” years since that case was decided.” develop strategies to win some However, it was less clear whether the Justice Gorsuch held that although of that business. Institute needed to meet the second “the ratifi cation canon can sometimes The Argus Leader countered condition, namely whether “privately prove a useful interpretive tool,” that such harm would not be held information [can] lose its Congress had never “reenacted” “substantial,” to which the district confi dential character for purposes of Exemption 4, meaning its use of similar court agreed. Argus Leader Media v. Exemption 4 if it’s communicated to the language in other statutes after the United States Dept. of Agriculture, government without assurances that D.C. Circuit’s ruling “tells us nothing 224 F. Supp. 3d 827, 833 835 (D.S.D. 2016). the government will keep it private,” about Congress’s understanding of the The Food Marketing Institute (emphasis in original). However, language it enacted in Exemption 4 in (Institute), a trade association Justice Gorsuch held that the Institute 1966.” representing grocery retailers, had “clearly” satisfi ed this condition, The Argus Leader further argued intervened in the case and appealed the whether or not it was necessary, that the “substantial competitive harm” decision to the U.S. Court of Appeals 28 requirement should be adopted because obtain. So the fact that private actors and that the investigation would “now FOIA exemptions are to be “narrowly have ‘customarily and actually have to proceed without access to the construed.” Justice Gorsuch rejected treated’ commercial information as SNAP data.” this argument as well, reasoning that secret . . . cannot be enough to justify In a June 24 tweet, Reporters the Court had “no license to give nondisclosure.” Justice Breyer added, Committee for Freedom of the Press [statutory] exemption[s] anything but a “[A] statute designed to take from the (RCFP) attorney Adam A. Marshall fair reading.” government the power to unilaterally also criticized the ruling, writing Thus, Justice Gorsuch concluded decide what information the public can that the Supreme Court had “wiped that “[a]t least where commercial view . . . put such determinative weight out” 45 years of precedent related to or fi nancial information is both on the government’s preference for Exemption 4, citing the D.C. Circuit’s customarily and actually treated as secrecy.. . . I fear the majority’s reading ruling in National Parks. private by its owner and provided to will deprive the public of information In a tweet on the same day, Argus the government under an assurance for reasons no better than convenience, Leader reporter Jonathan Ellis agreed. of privacy,” the information is skittishness, or bureaucratic inertia.” “This was never an exemption 4 case. “confi dential” within the meaning of Therefore, Justice Breyer concluded Period. But today six members of Exemption 4. He continued, “Because that “Exemption 4 can be satisfi ed the U.S. Supreme Court used it as a the store level SNAP data at issue here where, in addition to the conditions vehicle to wipe out more than 40 years is confi dential under that construction, set out by the majority, release of of established #FOIA precedent,” he the judgment of the court of appeals is commercial or fi nancial information wrote. reversed and the case is remanded for will cause genuine harm to an owner’s On July 23, 2019, several media further proceedings consistent with this economic or business interests.” outlets reported that U.S. Sens Chuck opinion.” The full ruling by the Supreme Grassley (R Iowa.), Patrick Leahy In an opinion concurring in part Court is available online at: (D Vt.), John Cornyn (R Texas), and dissenting in part, Justice Stephen https://www.supremecourt.gov/ and Dianne Feinstein (D Calif.) had Breyer, joined by Justices Ruth Bader opinions/18pdf/18 481_5426.pdf. introduced “The Open and Responsive Ginsburg and Sonia Sotomayor, agreed Following the decision, several Government Act of 2019,” S.2220, which with the two conditions set out by observers expressed concern with would add language to Exemption 4 Justice Gorsuch, but added that “there the majority’s ruling, particularly its to require that the term “confi dential” is a third: Release of such information impact on the news media’s ability to include “information that, if disclosed, must also cause genuine harm to cover matters of public interest. Argus would likely cause substantial harm the owner’s economic or business Leader news director Cory Myers to the competitive position of the interests.” said in a June 17 statement that he person from whom the information was Justice Breyer wrote that he agreed was “disappointed” in the outcome of obtained.” that the D.C. Circuit’s test in National the case. “This is a massive blow to The bill also provided that Parks “[went] too far,” reasoning the public’s right to know how its tax Exemption 4 would “not authorize that he could “fi nd nothing in FOIA’s dollars are being spent, and who is the withholding of a portion of an language, purposes, or history that benefi ting,” Myers said. “Regardless, we otherwise responsive record on imposes so stringent a requirement,” will continue to fi ght for government the basis that the portion is non which would create several problems, openness and transparency, as always.” responsive[.]” The Hill had previously including “long, onerous court Maribel Perez Wadsworth, president reported on June 25, 2019 that the proceedings” to determine whether of the USA Today Network, also Environmental Protection Agency something qualifi es as “substantial.” expressed disappointment in the ruling. (EPA) had approved a new rule without However, Justice Breyer disagreed “The court’s decision effectively gives a public comment period that allowed “with the majority’s decision to jump businesses relying on taxpayer dollars EPA offi cials to review all materials to the opposite conclusion, namely, the ability to decide for themselves that fi t a FOIA request criteria, known that Exemption 4 imposes no ‘harm’ what data the public will see about as “responsive documents,” and then requirement whatsoever.” how that money is spent,” she said in a decide “whether to release or withhold Justice Breyer provided several statement. “This is a step backward for a record or a portion of a record on the reasons, including fi rst that the word openness and a misreading of the very basis of responsiveness or under one “confi dential” sometimes referred purpose of the Freedom of Information or more exemptions under the FOIA, to, “at least in the national security Act.” and to issue ‘no records’ responses,” context, . . . information the disclosure In a June 24, 2019 “SCOTUSblog” prompting concern from observers, of which would cause harm.” Second, post, Mark Fenster, the Stephen C. who called for Congress to intervene. Justice Breyer contended that the O’Connell Chair at the Levin College S.2220 is available online at: https:// majority’s reading of Exemption 4 of Law at the University of Florida, www.grassley.senate.gov/sites/default/ was “at odds with [the] principles” of predicted that the ruling would fi les/documents/116.S.2220%20 %20 FOIA, including that the mandate of “frustrate news media, watchdogs Open%20and%20Responsive%20 the statute is the “broad disclosure and competitors who will be less Government%20Act.pdf. As the Bulletin of Government records,” citing CIA likely to have their FOIA requests went to press, the bill had not been v. Sims, 471 U. S. 159, 166 (1985). met.” Fenster added that the majority passed by the U.S. Senate. He continued, “The whole point of “never explained that the Argus Leader FOIA is to give the public access submitted its FOIA request as part of its SCOTT M EMMEL to information it cannot otherwise investigation into SNAP related fraud” SILHA BULLETIN E DITOR
29 Former Supreme Court Justice John Paul Stevens Passes Away; Authored Notable First Amendment Majority and Dissenting Opinions n July 16, 2019, former U.S. Legal, Ethical Questions for Reporting content of speech. In order to deny Supreme Court Justice Stolen Information” in the Winter/ minors access to potentially harmful John Paul Stevens died of Spring 2015 issue of the Silha Bulletin, speech, the CDA effectively suppresses complications following a “U.S. Supreme Court Rules in Historic a large amount of speech that adults stroke. Stevens, who was 99 Bartnicki Case” in the Summer 2001 have a constitutional right to receive and Oyears old, was appointed to the Supreme issue, and “Bartnicki v. Vopper Topic of to address to one another. That burden Court by President Gerald Ford in 1975 Sixteenth Annual Silha Lecture” in the on adult speech is unacceptable if less and served for 34 years before retiring Fall 2001 issue. Attorney Lee Levine, who restrictive alternatives would be at least in 2010. While on served as counsel for Vopper, delivered as effective in achieving the legitimate the Court, Justice the 16th Annual Silha Lecture, titled purpose that the statute was enacted SUPREME COURT Stevens authored to serve.” Justice NEWS several majority “[It is] not suffi cient . . . that the Stevens also and dissenting emphasized the opinions in key media law and free channels of communication be free importance of the speech cases, prompting some observers of governmental restraints. Without First Amendment to praise his jurisprudence on First some protection for the acquisition and the free fl ow of Amendment issues, while others called ideas. “As a matter his legacy more “mixed.” of information about the operation of constitutional One such majority opinion was in of public institutions such as prisons tradition, in the Bartnicki v. Vopper, 532 U.S. 514 (2001), by the public at large, the process absence of evidence in which the Supreme Court held in a to the contrary, 6 3 ruling that members of the press of self-governance contemplated by we presume that could not be held liable for publishing the Framers would be stripped of its governmental or broadcasting illegally obtained regulation of the information if they were not involved in substance.. . . [I]nformation gathering content of speech its acquisition. The case arose when an is entitled to some measure of is more likely to unknown party surreptitiously recorded constitutional protection.” interfere with the the telephone conversation of two free exchange Pennsylvania teachers’ union leaders, of ideas than to — Justice John Paul Stevens, including Gloria Bartnicki, the union’s encourage it,” he chief negotiator, who were discussing a dissenting in Houchins v. KQED (1978) wrote. “The interest possible strike and the need to “blow off in encouraging [opponents’] front porches” to attract “Newsgathering on Trial: The Supreme freedom of expression in a democratic attention to their cause. The unknown Court and the Press in the 21st Century.”) society outweighs any theoretical but party anonymously delivered the tape to Justice Stevens also authored the unproven benefi t of censorship.” the head of a local taxpayer association, infl uential majority opinion in Reno v. Justice Steven’s opinion in Reno who then gave it to a local radio host, ACLU, 521 U.S. 844 (1997). In this case, was a departure from his stance in Fredrick Vopper. The host summarily the Court was tasked with whether FCC v. Pacifi ca Foundation, 438 U.S. played the tape during his radio show. two portions of the Communications 726 (1978), in which he held that the Citing federal and Pennsylvania Decency Act of 1996 (CDA), 47 U.S.C.A. Federal Communication Commission wiretap laws, 18 U.S.C. §§ 2510, 2520; § 223 et seq., seeking to protect minors (FCC) could regulate “indecent speech” 18 Pa. Con. Stat. Ann. § 5701 et seq., from harmful content on the internet aired on the radio or television. Indecent the union leaders sued Vopper. Justice violated the First Amendment. One speech includes language or material Stevens, in his majority opinion, held provision criminalized the “‘knowing’ that “portrays sexual or excretory organs that “[w]here the punished publisher of transmission of ‘obscene or indecent’ or activities in a way that does not” information has obtained the information messages to any recipient under 18 qualify as obscenity, according to the in question in a manner lawful in itself years of age,” while the other prohibited FCC’s website. but from a source who has obtained the “‘knowin[g]’ sending or displaying Justice Stevens also authored notable it unlawfully” the government cannot to a person under 18 of any message dissenting opinions in three additional punish publication of information ‘that, in context, depicts or describes, media law cases. In Houchins v. KQED, of “public concern.” He added, “If a in terms patently offensive as measured KQED, a public television station, asked newspaper lawfully obtains truthful by contemporary community standards, to visit the Greystone facility at a county information about a matter of public sexual or excretory activities or organs.’” jail where maltreatment and suicides signifi cance . . . [the government] The Court ultimately held that had occurred. 438 U.S. 1 (1978). The may not constitutionally punish the two provisions violated the First sheriff denied access, instead setting up publication . . . absent a need . . . of the Amendment. Justice Stevens wrote, preplanned tours for the public and the highest order.” “We are persuaded that the CDA lacks press on a fi rst come fi rst serve basis. (For more on Bartnicki v. Vopper, the precision that the First Amendment The tours would not have passed through see “Hack of Sony Pictures Raises requires when a statute regulates the the Greystone facility. The Court was 30 asked to determine whether members Finally, in Wilson v. Layne , a reporter of the Bipartisan Campaign Reform of the press have a First Amendment and photographer for The Washington Act (BCRA) of 2002, 2 U.S.C. § 441b, a right of access to a county jail greater Post accompanied the United States federal campaign fi nance law, because it than that of members of the public. The Marshals Service and the Montgomery impermissibly discriminated against the Court held that the press did not have County (Md.) Police Department on a First Amendment rights of corporations such a right of access, even if reporters ride along with the intent to execute to expressly support political candidates. sought to “interview inmates and make three arrest warrants against Dominic 58 U.S. 310 (2010). The 5 4 majority held sound recordings, fi lms, and photographs Wilson, who had violated his probation that “[b]y suppressing the speech of for publication and broadcasting by on three previous felony charges. 526 manifold corporations, both for profi t newspapers, radio, and television.” U.S. 606 (1999). Offi cers entered the and nonprofi t, the Government prevents Justice Stevens argued in his home of Dominic Wilson’s father, Charles their voices and viewpoints from dissenting opinion that newsgathering Wilson, who ran into the living room to reaching the public and advising voters should receive constitutional protection investigate. The offi cers, thinking Charles on which persons or entities are hostile against government intrusion. He was his son Dominic, wrestled him to to their interests.” contended that the First Amendment the fl oor as his wife, Geraldine, entered Justice Stevens primarily contended protects “not only the dissemination the room wearing only a nightgown. The that he would have reached a narrower but also the receipt of information Post reporter and photographer were ruling and that the majority had and ideas.” He added that it is “not in the Wilsons’ living room during the ignored or worked around existing suffi cient . . . that the channels of confrontation. The Wilsons fi led suit, Court precedent. Justice Stevens also communication be free of governmental challenging the entry as unreasonable focused on the risk of corporations restraints. Without some protection for under the Fourth Amendment. undermining the democratic system the acquisition of information about The Supreme Court ruled in favor of of self government. “At bottom, the the operation of public institutions the Wilsons, fi nding that the presence Court’s opinion is thus a rejection of such as prisons by the public at of the Post reporter and photographer the common sense of the American large, the process of self governance violated the Wilsons’ rights, because, people, who have recognized a need to contemplated by the Framers would be among other reasons, the media prevent corporations from undermining stripped of its substance.” Therefore, members did not assist in the execution self government since the founding, Justice Stevens held that “information of the warrant. The majority further held and who have fought against the gathering is entitled to some measure of that the police offi cers in the case were distinctive corrupting potential of constitutional protection.” entitled to qualifi ed immunity. corporate electioneering since the days Second, in Zurcher v. Stanford In an opinion concurring in part and of Theodore Roosevelt,” he wrote. “It is Daily, the Supreme Court held that the dissenting in part, Justice Stevens agreed a strange time to repudiate that common press does not have special protection with the majority that the presence of sense. While American democracy is from newsroom searches under the the Post reporter and photographer imperfect, few outside the majority of First Amendment. 436 U.S. 547 (1978). violated the Wilsons’ Fourth Amendment this Court would have thought its fl aws The case arose after police executed a rights, because they had not consented included a dearth of corporate money in search warrant of the Stanford Daily’s to the media presence and the media politics.” newsroom, searching the student members did not assist in the execution Additionally, Justice Stevens newspaper’s laboratories, fi ling cabinets, of the warrant. However, he held that contended that corporations’ desks, and wastepaper baskets, fi nding the majority should not have granted “domination” of political speech, notes and correspondence. The police the police qualifi ed immunity, reasoning especially during an election, would limit had sought “negatives, fi lm, and pictures” that the principle that “[p]olice action the marketplace of ideas. He therefore related to a violent demonstration the in the execution of a warrant must called for the recognition of “the day before in which several offi cers be strictly limited to the objectives of integrity of the marketplace of political were injured after being attacked by the authorized intrusion” was “clearly ideas” in candidate elections. (For more demonstrators. established long before [1992].” He information on Citizens United, see In his dissenting opinion, Justice asserted that the principle was the “Supreme Court Strikes Down Campaign Stevens fi rst explained that the Fourth “confl uence of two important sources: Finance Regulation for Corporations” in Amendment “contains two [c]lauses, one our English forefathers’ traditional the Winter/Spring 2010 issue of the Silha protecting ‘persons, houses, papers, and respect for the sanctity of the private Bulletin.) effects, against unreasonable searches home and the American colonists’ hatred In the area of student speech, Justice and seizures,’ the other regulating the of the general warrant.” Therefore, Stevens also fi led a notable dissenting issuance of warrants[.]” Justice Stevens according to Justice Stevens, it “should opinion. In 2007, the Supreme Court argued that the police’s application for have been perfectly obvious to the held in Morse v. Frederick that school the search warrant used against the offi cers that their ‘invitation to the offi cials can prohibit students from Daily “set forth no facts suggesting media exceeded the scope of the search displaying messages that promote illegal that respondents were involved in any authorized by the warrant.’” drug use. 551 U.S. 393 (2007). The Court wrongdoing or would destroy the desired During his tenure on the Supreme further held that although students evidence if given notice of what the Court, Justice Stevens also authored do have some right to political speech police desired.” He therefore held that majority and dissenting opinions in other even while in school, this right does the warrant “did not comply with the areas of First Amendment jurisprudence. not extend to pro drug messages that Warrant Clause and that the search was One of his more notable dissenting may undermine the school’s mission of unreasonable within the meaning of the opinions was in Citizens United v. FEC, discouraging drug use. The case arose fi rst Clause of the Fourth Amendment.” in which the Court struck down portions Justice Stevens, continued on page 32 31 Justice Stevens, continued from page 31 tasked with determining whether notes “reigning in warrantless searches [and that were taken from former Secretary seizures.]” EPIC provided the example after a group of high school students, of State Henry Kissinger’s offi ce in the of Ferguson v. City of Charleston, 532 including Joseph Frederick, held up U.S. State Department and moved to a U.S. 67 (2001), in which Justice Stevens, a sign reading “BONG HiTS 4 JESUS” private residence before being donated writing for the majority, held that a as the Olympic Torch passed through to the Library of Congress were subject state hospital’s policy of using maternity Juneau, Alaska. to disclosure under FOIA. The Court patients’ urine tests as a means of testing In his dissenting opinion, Justice ultimately held in a 5 2 ruling that the for drugs was a violation of their Fourth Stevens wrote that the First Amendment district court did not have the authority Amendment rights. EPIC also cited should “protect[] student speech if to order the transfer of the notes back to Arizona v. Gant, 556 U.S. 332 (2009), the message itself neither violates the State Department. The Court further in which Justice Stevens held in the a permissible rule nor expressly held that the documents, because the majority opinion that a police search of advocates conduct that is illegal and State Department no longer had “custody the passenger compartment of a vehicle harmful to students.” He concluded, or control” in order to withhold the while the owner was handcuffed in a “This nonsense banner does neither.” records, did not fall under the purview of patrol car was unreasonable and violated Justice Stevens further argued that the FOIA. the Fourth Amendment. majority did “serious violence to the In his dissenting opinion, Justice Following Justice Stevens’ death, First Amendment in upholding — indeed, Stevens disagreed with the majority’s several observers reached different lauding — a school’s decision to conclusion that “custody” and “control” conclusions about his First Amendment punish Frederick for expressing a view require physical possession of the legacy. On July 17, 2019, David L. Hudson with which it disagreed.” (For more records. He wrote that this conclusion Jr., First Amendment Fellow at the information on Morse, see “In Morse “seem[ed] . . . wholly inconsistent with Freedom Forum Institute and a law v. Frederick , Court Places Limits on the [C]ongressional purpose underlying professor at Belmont University, wrote Student Expression” in the Summer 2007 [FOIA].” Justice Stevens continued, “The that Justice Stevens “left an indelible issue of the Silha Bulletin.) decision today exempts documents that mark on many areas of First Amendment Justice Stevens also wrote the have been wrongfully removed from jurisprudence,” including because majority opinion in two cases that the agency’s fi les from any scrutiny he “forcefully argued for signifi cant upheld First Amendment protection for whatsoever under FOIA. It thus creates protection for commercial speech, which commercial speech. In 44 Liquormart an incentive for outgoing agency offi cials was often relegated to second class Inc. v. Rhode Island, the Supreme Court to remove potentially embarrassing status in the First Amendment family.” held that Rhode Island’s complete ban documents from their fi les in order to In a June 2017 post for The First on advertisements providing the retail frustrate future FOIA requests.” Amendment Encyclopedia, Hudson price of alcoholic beverages violated However, in Department of Justice had quoted a lecture Justice Stevens the First Amendment. 517 U.S. 484 v. Reporters Committee for Freedom of delivered at Yale Law School in October (1996). Justice Stevens reaffi rmed the Press, 489 U.S. 749 (1989), Justice 1992, in which he emphasized the that the First Amendment “protected Stevens, writing the majority opinion, importance of freedom of speech. “Let us the dissemination of truthful and held that it was an “unwarranted hope that whenever we decide to tolerate nonmisleading commercial messages invasion of privacy,” as defi ned by intolerant speech, the speaker as well about lawful products and services.” Exemption 7(C) of FOIA, to make as the audience will understand that we Similarly, in Greater New Orleans electronic “rap sheets” compiled by the do so to express our deep commitment Broadcasting Association v. United Federal Bureau of Investigation (FBI) to the value of tolerance — a value States, 527 U.S. 173 (1999), Justice available under the statute. He further protected by every clause in the single Stevens held that advertising restrictions found that the privacy interest of Charles sentence called the First Amendment,” prohibiting the Greater New Orleans Medico, who was suspected with the Justice Stevens said. Broadcasting Association from running rest of his family of being involved Conversely, in a July 17 commentary radio and television advertisements in organized crime, was the “sort of for WGBH in Boston, Mass., Dan regarding lawful private casino gambling ‘personal privacy’ interest that Congress Kennedy, an associate professor of were unconstitutional. He reasoned that intended [Exemption 7(C)] to protect.” journalism at Northeastern University, the commercial messages would “convey Justice Stevens reasoned that contended that Justice Stevens had information — whether taken favorably although the information in the rap more of a mixed legacy on the First or unfavorably by the audience — about sheets was available in hard copy Amendment. He cited Justice Stevens’ an activity that is the subject of intense elsewhere, such as in local courthouses, dissent in Texas v. Johnson , 491 U.S. public debate in many communities.” He it would be hard to fi nd all of the records, 397 (1989), in which the Supreme Court further asserted that the advertisements which he referred to as “practical held that burning the fl ag was protected would include “accurate information as obscurity.” Ultimately, Justice Stevens expression under the First Amendment. to the operation of market competitors, ruled that the privacy interests in the Justice Stevens disagreed, writing, such as pay out ratios, which [could] case weighed more heavily than the “Sanctioning the public desecration of benefi t listeners by informing their public’s interest in knowing more about the fl ag will tarnish its value . . . both for consumption choices and fostering price the Medico family and organized crime. those who cherish the ideas for which it competition.” Following Justice Stevens’ retirement waves and for those who desire to don Finally, Justice Stevens also in 2010, the Electronic Privacy the robes of martyrdom by burning it.” authored signifi cant opinions in key Information Center (EPIC) noted that Freedom of Information Act (FOIA), Justice Stevens had often “maintained an SCOTT M EMMEL 5 U.S.C. § 552, cases. In Kissinger v. individual’s right to privacy,” including SILHA BULLETIN E DITOR Reporters Committee for Freedom of the under the Fourth Amendment by Press, 445 U.S. 136 (1980), the Court was 32 Minnesota Supreme Court, Sixth Circuit, and Eastern District of Kentucky Rule in Notable Defamation Cases n the summer of 2019, the order to recover presumed damages Minnesota Supreme Court in Stuempges. Minnesota Supreme Court, the when the underlying statements involve However, the district court found that U.S. Courts of Appeals for the a matter of public concern. Maethner v. Maethner had failed to establish that there Second and Sixth Circuits, and Someplace Safe, Inc., 2019 WL 2608470 was “a genuine issue of material fact” the U.S. District Court for the (Minn. 2019). Observers noted that the on common law malice. The court also IEastern District of Kentucky ruled in four Court had therefore revised its holding held that Someplace Safe had no legal notable defamation cases. On June 26, in Stuempges v. Parke, Davis & Co., duty to investigate the statements before 2019, Minnesota’s high court held that that some First Amendment protections publishing them in its newsletter, and private plaintiffs in against defamation liability only applied that Maethner had not shown suffi cient defamation cases to media speakers. 297 N.W.2d 252, 255 evidence of actual damages. DEFAMATION involving a matter (Minn. 1980). On Feb. 12, 2018, the Minnesota Court of public concern Maethner arose in October 2010 after of Appeals ruled that Maethner had are required to plaintiff Kurt Maethner and defendant demonstrated that statements about him prove “actual malice” in order to recover Jaquelin Jorud ended their 15 year regarding domestic violence constituted presumed damages. Observers noted marriage. Although Jorud made no defamation per se, meaning statements that the Court had therefore revised accusations of domestic abuse during that accuse an individual of crimes or earlier precedent that found that some the marriage, she sought assistance immoral acts and are presumed to be First Amendment protections against from defendant Someplace Safe, an harmful to their reputation. 907 N.W.2d defamation liability only applied to advocacy group that offers services 665 (Minn. Ct. App. 2018). The court held members of the news media. to victims and survivors of domestic that Maethner could therefore recover On July 17, the Sixth Circuit dismissed abuse, during the divorce proceedings. presumed damages without having to a defamation lawsuit brought against In May 2014, Someplace Safe awarded prove actual damages or demonstrating The New York Times and four of its Jorud a “Survivor Award” as a “survivor that the defendants had made the employees by an award winning cancer of domestic abuse” at a fundraising statements with common law malice. researcher. The court held that a Times banquet. Someplace Safe issued a press The court further held that Someplace article detailing allegations of scientifi c release about the banquet and award Safe owed a duty to exercise “reasonable misconduct against the professor would recipients, and published statements and care” before publishing the statements be a “standard piece of investigative photographs of the event on its Facebook and “[w]hether Someplace Safe breached journalism” in the eyes of “reasonable page. Jorud also posted about the banquet its duty of reasonable care raised a readers.” On August 6, the Second Circuit and award on her personal Facebook fact question for the jury.” Additionally, revived a lawsuit brought by former page. Additionally, she wrote a one page the court ruled that “case law requires Alaska Gov. Sarah Palin against The New story about her experience “surviving Maethner to prove negligence as one York Times , holding that the former domestic violence” and “thriving through element of his defamation claim against vice presidential candidate had plausibly recovery” for Someplace Safe’s newsletter. Someplace Safe and Maethner does not alleged that the Times had published an Someplace Safe said that it did not have a separate negligence claim.” The editorial with actual malice connecting attempt to investigate her claims, which court therefore dismissed Count III of her to a 2011 mass shooting. did not mention Maethner by name. Maethner’s complaint alleging negligence Finally, on July 26, Eastern District In October 2015, Maethner fi led a because it was separate from his of Kentucky Judge William Bertelsman complaint in the Otter Tail County (Minn.) defamation claim. dismissed a $250 million lawsuit against District Court alleging that Someplace (For more information on the The Washington Post. The suit was fi led Safe and Jorud had defamed him in background of Maethner, the Minnesota by the family of Nicholas Sandmann, the the Facebook posts, press release, and Court of Appeals ruling, and Stuempges, Covington Catholic High School student newsletter article. The district court see Minnesota Court of Appeals Holds involved in a January 2019 confrontation granted summary judgement to the Plaintiff Can Recover Damages without with Nathan Phillips, a Native American defendants, fi nding that the allegedly Showing of Malice; Minnesota Supreme man, at the Lincoln Memorial. defamatory statements were protected Court Agrees to Hear Case in “Minnesota by a “conditional or qualifi ed privilege.” and Federal Courts Grapple with Minnesota Supreme Court Rules First Under Minnesota law, an individual “who Defamation Questions; Right Wing Radio Amendment Protection Applies to makes a defamatory statement is not liable Host Faces Several Defamation Lawsuits” Nonmedia Speakers in Defamation if a qualifi ed privilege applies and the in the Summer 2018 issue of the Silha Cases Involving a Matter of Public privilege is not abused.” If a statement is Bulletin.) Concern protected by the privilege, the plaintiff, as Chief Justice Lorie Skjerven Gildea On June 26, 2019, the Minnesota part of the defamation claim, must “show wrote the majority opinion of the Supreme Court held in a 2 1 ruling that the allegedly defamatory statements Minnesota Supreme Court. She fi rst that a private plaintiff is required to were made with [common law] malice,” explained that under common law, a show “actual malice,” meaning that meaning “ill will and improper motives, or plaintiff pursuing a defamation claim the alleged defamatory statements “must prove that the defendant made: were made with knowledge of falsity causelessly and wantonly for the purpose or reckless disregard for the truth, in of injuring the plaintiff,” as defi ned by the Defamation, continued on page 34 33 Defamation, continued from page 33 Chief Justice Gildea ruled that the Chief Justice Gildea further reasoned (a) a false and defamatory statement proper focus “regarding the availability that although the subject of domestic about the plaintiff; (b) in [an] unprivileged of presumed damages . . . is whether the violence is a matter of public concern “as publication to a third party; (c) that matter at issue is one of public concern.” a general proposition,” the statements harmed the plaintiff’s reputation in She found that the dispositive inquiry made by Jorud and Someplace Safe the community,” citing Weinberger v. was not whether the defendant was a “[were] related to a private matter Maplewood Review, 668 N.W.2d 667, 673 member of the media or not, though between former spouses.” She also (Minn. 2003). According to Chief Justice such a consideration may be relevant pointed out that Someplace Safe’s Gildea, under common law, qualifi ed in “determining whether a matter is one publication, as acknowledged by privileges can defeat a defamation claim, of public concern.” Chief Justice Gildea Maethner, was ‘within a fairly small area, but the privilege can be overcome if the continued, “[I]t is the private or public in and around Otter Tail County’ — and plaintiff demonstrates that the defendant concern of the statements at issue — not that the statements were made by an made the alleged defamatory statement the identity of the speaker — that provides individual and organization that do ‘not with common law malice. the First Amendment touchstone for engage in mass media communications.’” Second, Chief Justice Gildea explained determining whether a private plaintiff Finally, Chief Justice Gildea turned that the U.S. Supreme Court, in order may rely on presumed damages in a to whether Someplace Safe had a duty to avoid the chilling of constitutionally defamation action.” to investigate Jorud’s statements before protected speech, “imposed prerequisites Chief Justice Gildea cited the U.S. publishing them. Although Maethner did to recovery in certain types of defamation Supreme Court’s fi nding in Sullivan not appeal the dismissal of his negligence actions,” including that public fi gures and that the First Amendment recognizes “a claim by the Minnesota Court of Appeals, public offi cials must prove actual malice, profound national commitment to the the issue was still relevant because as required by New York Times Co. v. principle that debate on public issues Someplace Safe challenged the court’s Sullivan, 376 U.S. 254, 278 280 (1964) should be uninhibited, robust, and holding that there was a jury issue on and Curtis Publishing Co. v. Butts, wide open,” demonstrating the importance negligence. 388 U.S. 130, 155 (1967). of protecting speech on public issues. She Chief Justice Gildea held that the Third, Chief Justice Gildea considered also cited Gertz v. Robert Welch, Inc., 418 “record indicate[d] that Someplace whether Maethner had produced suffi cient U.S. 323 (1974), in which the Supreme evidence of damages to survive summary Safe believed Jorud’s statements to be judgment. She held that Maethner had Court required proof of actual malice true based on its interactions with her” not offered suffi cient proof that the before a private individual may recover and that there was “no evidence that statements at issue had “any impact on presumed damages. In Dun & Bradstreet, Someplace Safe had reason to question his reputation,” failing the third prong Inc. v. Greenmoss Builders, Inc., 472 U.S. Jorud’s honesty or credibility.” She of a defamation claim. According to 749, 760 761 (1985), the Court limited the therefore held that Maethner could not Chief Justice Gildea, Maethner therefore Gertz ruling to instances where the alleged “survive summary judgment by simply needed to prove he could recover defamatory statements involved matters resting on his assertions that there was a presumed damages, which are awarded of public concern. duty to investigate.” She continued, “To for “[a]ccusations of criminal behavior or Fifth, Chief Justice Gildea turned to create an issue for trial on the breach moral turpitude, like those made here.” whether the defamatory statements at question, Maethner needed to submit These claims constitute defamation per issue involved matters of public concern. evidence to support the conclusion that se , under which “common law allowed She remanded to the district court “to a reasonable person in the position of harm to reputation to be presumed,” decide in the fi rst instance whether the Someplace Safe would have investigated Chief Justice Gildea wrote, because such challenged statements involve a matter or had reason to doubt Jorud’s credibility. statements are “virtually certain to cause of public or private concern.” However, Maethner offered no such evidence.” serious injury to reputation, and that this Chief Justice Gildea provided several Therefore, Chief Justice Gildea held kind of injury is extremely diffi cult to reasons why the statements probably that the Minnesota Court of Appeals prove.” did not involve matters of public “erred in concluding that there [was] ‘a Fourth, Chief Justice Gildea held concern, including that the Court would fact question for the jury’ on whether that although the statements at issue need to consider “the totality of the Someplace Safe breached its duty did involve criminal behavior, that circumstances” around the statements, of reasonable care.” As a result, the “[did] not end the analysis,” reasoning citing Snyder v. Phelps, 562 U.S. 443 Minnesota Supreme Court reversed the that the “doctrine of defamation per (2011), in which the U.S. Supreme Court appellate court and “reinstate[d] the se cannot offend the constitutional considered “the context of the speech” at district court’s dismissal of Maethner’s guarantees of the First Amendment.” She issue, not just the content of the messages. defamation claim against Someplace cited the Minnesota Supreme Court’s That case revolved around picketing of Safe.” ruling in Richie v. Paramount Pictures military funerals by the Westboro (Kan.) In an opinion concurring in part and Corporation, 544 N.W.2d 21, 26, 28 Baptist Church, which the Court held was dissenting in part, Justice Paul Thissen (Minn. 1996), in which the Court held that protected by the First Amendment despite wrote that he agreed that the case should “damages cannot be presumed” and that the sensitive context and the pain infl icted be remanded to the district court to “a showing of actual harm to reputation” by the picketers’ speech on the family of determine whether the alleged defamatory is required “where the defamatory the fallen Marine. (For more information statements involved a matter of public statements were made by the media, on Snyder v. Phelps, see “Supreme Court concern. However, he disagreed with involved a matter of public concern, and Ruling Protects Funeral Picketers” in the majority’s decision that “no material there have been no allegations of actual the Winter/Spring 2011 issue of the Silha factual questions exist about whether malice.” Bulletin.) [Someplace Safe] acted with reasonable 34 care before publishing the allegedly defamation liability applied only to media “followed allegations made by others defamatory statements.” Justice Thissen speakers.” against Dr. Croce,” which he denied in a wrote that he would remand to the district In a June 29 email to the Minneapolis March 2017 letter responding to Glanz. court to allow a jury to resolve the issue. Star Tribune, Margaret Skelton, an On March 8, 2017, The New York Times Justice Thissen disagreed with attorney for Someplace Safe, called the published an article by Glanz and Agustin the majority’s holding that “no ruling a victory for nonprofi t organizations Armendariz, another reporter, titled, reasonable juror could conclude that representing domestic abuse victims. “Years of Ethics Charges, but Star Cancer Someplace Safe should have made “Victims of domestic violence often do Researcher Gets a Pass.” The article some effort to check on the accuracy not have police records, witnesses or included several allegations, including of Jorud’s . . . statements[.]” He instead photographs that verify their abuse,” that Croce “[for] several years . . . [had] contended that “[d]isputes over whether she wrote. “The Court determined that been fending off a tide of allegations a breach of a duty of care occurred are Someplace Safe acted as any reasonable, of data falsifi cation and other scientifi c nonprofi t victims’ advocacy group would misconduct, according to federal and state typically questions we leave for a jury act by referring to its client as a ‘survivor’ records, whistle blower complaints and to resolve” and that in instances where and by publishing a client’s statements correspondence with scientifi c journals[.]” reasonable persons are likely to disagree about her personal experiences. Further, One such accusation was in 2013 in which on “whether a duty of care was breached, the court found that Someplace Safe had an “anonymous critic contacted Ohio State summary judgment is appropriate.” Justice no reason to question the accuracy of and the federal authorities with allegations Thissen also pointed out that “Someplace its client’s accounting of her history of of falsifi ed data in more than 30 of Dr. Safe employees [had] stated that the suffering domestic abuse.” Croce’s papers.” The article also reported organization did not care whether Jorud’s Marshall Tanick, an attorney for that David A. Sanders, a virologist at claims of abuse were true, accurate, or Maethner, told the Star Tribune he Purdue University, had “made claims of complete.” would consider an appeal to the U.S. falsifi ed data and plagiarism directly to Additionally, Justice Thissen rejected Supreme Court. “The decision will pose scientifi c journals where more than 20 of Someplace Safe’s argument that it was new challenges for people who claim Dr. Croce’s papers have been published.” protected by a qualifi ed privilege. He listed their reputation has been damaged in The article acknowledged that Croce had several ways in which past defendants had some respects,” Tanick said. “But it also “never been penalized for misconduct.” asserted such a privilege, including that provides some opportunities for those The full article is available online at: alleged defamatory statements were made claims to be successful in matters deemed https://www.nytimes.com/2017/03/08/ to “prevent future criminal behavior” or to be private rather than public.” science/cancer carlo croce.html. to “facilitate the provision of services to a As the Bulletin went to press, Tanick On May 10, 2017, Croce sued the New domestic violence victim.” Justice Thissen had not yet fi led a petition for certiorari York Times Company and four of its argued that the alleged defamatory to the Supreme Court. employees — Glanz, Armendariz, Arthur statements at issue were not made “on a Ochs Sulzberger Jr., the publisher of ‘proper occasion’ as our qualifi ed privilege Sixth Circuit Dismisses Defamation The New York Times, and Dean Baquet, precedent requires.” Lawsuit Against The New York Times the executive editor of the Times — for In a concurring opinion, Justice G. On July 17, 2019, the U.S. Court of defamation, false light, and intentional Barry Anderson wrote that he “join[ed], Appeals for the Sixth Circuit dismissed a infl iction of emotional distress (IIED) in full, the court’s opinion on this defamation lawsuit brought against The in the U.S. District Court for the matter.” However, he wrote separately New York Times and four of its employees Southern District of Ohio. The district to note his agreement with Justice by award winning cancer researcher court granted the defendants’ motion Carlo Croce, fi nding that the Times to dismiss, except for one statement in Thissen’s “reject[ion of] the applicability article detailing allegations of scientifi c the letter Glanz sent to Croce and OSU, of a qualifi ed privilege protecting the misconduct against Croce would be seen namely “Dr. Croce reviewed and awarded statements at issue in this dispute.” by “reasonable readers” as “a standard countless grants using CTR money, often The full ruling is available online piece of investigative journalism.” Croce in cases with clear confl icts of interest at: https://cases.justia.com/minnesota/ v. The New York Times Co. , No. 18 4158, involving grantees at his own institution supreme court/2019 a17 0998. 2019 WL 3214077 (6th Cir. 2019). (Thomas Jefferson University at the pdf?ts=1561743171. As the Bulletin went The case arose on Sept. 14, 2016 time).” Croce v. The New York Times Co., to press, the district court had not ruled when Croce, a professor and the Chair of 345 F.Supp.3d 961 (S.D. Ohio 2018). The on the issues remanded by the Minnesota Human Cancer Genetics at The Ohio State court found that this particular statement Supreme Court. University (OSU), received an email from survived the motion to dismiss because In a June 26, 2019 post on his blog, New York Times reporter James Glanz it “carrie[d] defamatory potential: a “The Volokh Conspiracy,” Eugene Volokh, about an interview regarding “promising statement to Dr. Croce’s current employer the Gary T. Schwartz Professor of Law anti cancer results.” In November 2016, about Dr. Croce’s ethical misconduct at a at the UCLA School of Law, praised Glanz followed up, but let Croce know previous place of employment.” the ruling and added that “[a]s best [he “that the scope of [The New York Times’] On appeal, Sixth Circuit Judge Karen could] tell, only a small handful of states” reporting ha[d] broadened, and [that Glanz Nelson Moore delivered the unanimous took the view that the First Amendment had] made a few records requests at OSU opinion of the three judge panel. She fi rst only “secur[es] special rights for the and other institutions.” Three weeks later, explained that under Ohio law, a plaintiff, institutional press.” He also noted that the Glanz also sent a letter to Croce and OSU in order to state a defamation claim, must Minnesota Supreme Court had held that stating that he “had questions he wanted show “(1) that a false statement of fact nonmedia speakers were “fully protected to ‘put urgently’ to Dr. Croce and OSU ‘as was made, (2) that the statement was by the First Amendment,” a departure part of an article’ Glanz was preparing.” from the Court’s precedent that said “some The letter listed several questions that First Amendment protections against Defamation, continued on page 36 35 Defamation, continued from page 35 Moore also addressed Croce’s argument Second Circuit Revives Lawsuit that the Times had published the article Brought by Sarah Palin Against The defamatory, (3) that the statement was with actual malice — knowledge that New York Times published, (4) that the plaintiff suffered the statement was false or reckless On Aug. 6, 2019, several media outlets injury as a proximate result of the disregard for the truth — as defi ned by reported that the U.S. Court of Appeals for publication, and (5) that the defendant the U.S. Supreme Court in New York the Second Circuit had revived a lawsuit acted with the requisite degree of fault Times v. Sullivan , 376 U.S. 254, 279 280 against The New York Times brought in publishing the statement.” At issue in (1964). Croce alleged that publishing the by former vice presidential candidate the present case was the second element, statements by Sanders constituted actual Sarah Palin in which she claimed that the which required that the court “decide as a malice because Sanders had “disavowed newspaper had published a statement matter of law whether certain statements his criticisms.” However, Moore found that about her in an editorial that it “knew to alleged to be defamatory are actionable or “[i]n actuality, [Sanders did] not deny that be false.” Palin v. The New York Times not,” according to Moore. he made the statements that appear in the Co., No. 17 3801 cv (2nd Cir. 2019). Second, Moore wrote that in order article, but rather, he denies that they are The Second Circuit held that Palin had to make such a determination, the court defamatory.” plausibly alleged a defamation claim must apply the Ohio Supreme Court’s Third, Moore turned to Croce’s claim and that the case should proceed to the “reasonable reader” standard, which that “a reasonable reader could attribute discovery phase, meaning both parties provides that if “a reasonable reader, a defamatory meaning to the article” would take depositions and collect reading a statement in the context of the (emphasis in original). Moore applied evidence. The Second Circuit noted entire publication, would interpret the the “innocent construction rule,” which that although Palin had made “suffi cient statement as defamatory, then the plaintiff provides that “if allegedly defamatory allegations of actual malice,” the ruling has an actionable claim.” At issue in the words are susceptible to two meanings, should not “be construed to cast doubt appeal were the Times article, its headline one defamatory and one innocent, the on the First Amendment’s crucial and subheadline, and several additional defamatory meaning should be rejected, constitutional protections.” alleged defamatory statements within and the innocent meaning adopted” On June 14, 2017, The New York Times the article. Moore noted that Croce had (emphasis in original). published an editorial connecting the 2011 forfeited his claims related to the Glanz’s Moore concluded that the article mass shooting by Jared Lee Loughner in letter and a later radio interview of Glanz and alleged defamatory statements Tucson, Ariz. that killed six people and “by failing to develop any argument on “comfortably [fell] within the contours severely wounded then Congresswoman them in his briefs.” of the innocent construction rule.” She Gabrielle Giffords with a map distributed Applying the “reasonable reader” explained that an innocent reading was by Palin’s political action committee standard, Moore concluded that the easily found in the article, namely that (SarahPAC) in 2010. The editorial said that article, its headline, its subheadline, Croce had been the subject of criticism the map “put Ms. Giffords and 19 other and the statements within it were not and allegations, but that there were “no Democrats under stylized cross hairs.” defamatory, fi nding that “a reasonable fi ndings of deliberate misconduct have The editorial was prompted by the June reader would construe the article as a been made against him,” he had denied the 14, 2017 mass shooting in which left wing standard piece of investigative journalism allegations, and the he was “otherwise a activist James Hodgkinson opened fi re that presents newsworthy allegations successful cancer researcher.” on a baseball practice for Republican made by others, with appropriate Finally, Moore concluded that Croce’s members of Congress in Alexandria, Va. qualifying language.” remaining false light and IIED claims The Times issued a correction Moore provided several reasons, could “be disposed of quickly because within a day, clarifying that there was including that although the article “quotes their success rests on the defamation no established link between Palin and several of [Croce’s] critics” and “raises claims” and that “no arguments remain to the 2011 shooting. Additionally, the concerns about various errors in [Croce’s] support” these claims. revised editorial clarifi ed that Palin’s papers, as well as concerns about OSU’s The full ruling is available online at: map had never put the faces of Gifford ability to investigate effectively allegations https://www.ballardspahr.com/ /media/ and the other democrats under cross against him,” such allegations did “not fi les/sixth circuit opinion in croce.pdf. As hairs, but instead that the map “showed necessarily imply guilt.” Furthermore, the Bulletin went to press, Croce had not the targeted electoral districts of Ms. the article did not suggest that these announced whether he would appeal the Giffords and 19 other Democrats under allegations were true, according to Moore. ruling to the Supreme Court or request an stylized cross hairs” (emphasis added). Additionally, Moore noted that the en banc hearing by the Sixth Circuit. CNN Business reported on June 15, article was “not entirely unfavorable” In a July 19 commentary, Ballard Spahr 2017 that the editorial also added a because it acknowledged Croce had LLP attorneys Jay Ward Brown, Michael note explaining the change, which read, not been punished in relation to the D. Sullivan, and Matthew E. Kelley, who “The editorial has . . . been updated to allegations. Moore added that the article represented the Times in the case, wrote clarify that in [the map] . . ., electoral included a quote defending Croce and that the Sixth Circuit’s ruling “solidifi es districts, not Democratic lawmakers, also gave a “mixed portrayal of one of Dr. legal protections for balanced news were depicted beneath stylized cross Croce’s critics, ‘Clare Francis,’ who [was] reports about controversial people and hairs.” Nevertheless, Palin asserted in her described as a ‘digital vigilante[],’ ‘both issues by recognizing that, when a report complaint that the Times ’ response “did legendary and loathed,’ ‘a scientifi c gadfl y,’ presents the positions of both sides to not approach the degree of the retraction and as having a ‘high strung style.’” Moore a confl ict, reasonable members of the and apology necessary and warranted by therefore concluded that a “reasonable audience do not interpret it as damaging [the Times ’] false assertion that Mrs. Palin reader would . . . interpret the article as the reputation of the individuals involved incited murder.” presenting two sides of this controversy.” in the dispute.” On Aug. 29, 2017, U.S. District Court for the Southern District of New York 36 Judge Jed S. Rakoff dismissed Palin’s evidentiary hearing on the Times ’ motion theory of actual malice,” namely that lawsuit, fi nding that her complaint to dismiss Palin’s lawsuit. According to Bennet had a “pre determined” argument failed to show that the Times published Walker, Rakoff had justifi ed the hearing he wanted to make in the editorial. inaccurate statements maliciously. as necessary to “assess the plausibility of Specifi cally, Walker found that: Palin v. The New York Times Company, the ‘[o]ne close question’ presented by the 1. “Bennet’s background as an 264 F.Supp.3d 527 (S.D.N.Y. 2017). He Times ’ motion to dismiss: whether Palin editor and [left leaning] political explained that because Palin was a had suffi ciently pled the actual malice advocate provided suffi cient public fi gure, she had the burden of element of her defamation claim.” During evidence to permit a jury to fi nd “establish[ing] by clear and convincing the Aug. 16, 2017 hearing, Times editorial that he published the editorial with evidence that the Times acted with ‘actual page editor James Bennet, the author deliberate or reckless disregard for malice,’” a standard established by the of the editorial, testifi ed that he did not its truth, U.S. Supreme Court in New York Times intend to blame Palin for the 2011 mass 2. the drafting and editorial process v. Sullivan that public offi cials have to shooting, but was trying to make a point also permitted an inference of show that news organizations knowingly about the heated political environment. deliberate or reckless falsifi cation, published false information or acted with In his ruling in favor of the Times , Rakoff and reckless disregard for the truth. 376 U.S. used evidence collected at the hearing, 3. the Times’ subsequent correction 254 (1964). Rakoff ultimately held that which neither party objected to, according to the editorial did not undermine because the complaint “fail[ed] to identify to Walker. the plausibility of that inference.” any individual who possessed the requisite Walker agreed with Palin’s argument Regarding the fi rst claim, Walker knowledge and intent and, instead, that Rakoff’s reliance on the hearing acknowledged Palin’s argument that attributes it to the Times in general,” “offend[ed] the Federal Rules of Civil Bennet “was more likely than the average the complaint “fail[ed] on its face” to Procedure.” Walker wrote that Rakoff editor in chief to know the truth about the adequately allege actual malice. had invoked Rule 43(c), which addresses Loughner shooting because he had reason However, Rakoff also concluded witness testimony during a trial, including to be personally hostile toward Palin, her that because the alleged defamatory that such testimony “must be taken in political party, and her pro gun stance.” statements in the editorial referenced a open court” unless a statute or other rules Walker explained that Sen. Michael Bennet particular member of SarahPAC — Palin “provide otherwise.” Walker held that (D Colo.) is Bennet’s brother and that herself — the statements were “of and Rakoff’s use of Rule 43(c) “was misplaced” two days before the Loughner shooting, concerning” her. Additionally, Rakoff because the rule “has nothing to do with a man had threated to open fi re on Sen. held that the linking of Palin to the 2011 the proceedings at the motion to dismiss Bennet’s offi ces, leading the senator shooting was a factual statement that stage.” and his brother to become “outspoken could be proven false, such as if there Walker further explained that the advocate[s] for gun control.” Walker wrote is no evidence that Loughner ever saw Times ’ motion to dismiss for failure that although “political opposition alone the map. Rakoff added that “although to state a claim was fi led under does not constitute actual malice . . . the offending paragraphs . . . contain[ed] Rule 12(b)(6). According to Walker, these allegations could indicate more than various assertions of opinion, a reasonable Rule 12(d) provides that “[i]f, on a motion sheer political bias — they arguably show reader could well view them as a factual under Rule 12(b)(6), . . . matters outside that Bennet had a personal connection statement asserting that there was a the pleadings are presented to and not to a potential shooting that animated his ‘direct link’” between the SarahPAC Map excluded by the court, the motion must hostility to pro gun positions at the time of and the Loughner shooting. be treated as one for summary judgment.” the Loughner shooting in 2011.” (For more information on the Walker held that Rakoff had, in fact, Walker wrote that Rakoff had background of the case and Rakoff’s “relied on matters outside the pleadings determined that Bennet’s “behavior [was] ruling, see District Court Judge to decide the motion to dismiss” when much more plausibly consistent with Dismisses Sarah Palin’s Lawsuit basing his ruling on Bennet’s testimony, making an unintended mistake and then Against The New York Times in “News but “did not convert the motion into one correcting it than with acting with actual Organizations and Journalists Face High for summary judgment.” Walker reasoned malice.” However, Walker ruled that it Profi le Defamation Lawsuits” in the Fall that the “material that came to light was not “the district court’s province to 2017 issue of the Silha Bulletin.) at the hearing did considerably more dismiss a plausible complaint because it is On Aug. 6, 2019, Second Circuit Judge than elaborate on the allegations of the not as plausible as the defendant’s theory.” John M. Walker Jr. wrote the opinion complaint” and that Palin “could not have Instead, such a determination is up to of the unanimous three judge panel. He ‘relie[d] heavily’ on Bennet’s testimony a jury. Walker therefore concluded that fi rst stated that under New York law, when drafting her complaint because she Palin had “met her burden to plead facts a defamation plaintiff must “establish had no idea what Bennet would say.” giving rise to the plausible inference that fi ve elements: (1) a written defamatory Third, Walker held that even if Rakoff Bennet published the allegedly defamatory statement of and concerning the plaintiff, had converted the motion to one for editorial with actual malice.” (2) publication to a third party, (3) fault, summary judgment, the Second Circuit Fifth, Walker found that Palin had (4) falsity of the defamatory statement, “would still have to vacate because the plausibly alleged that the alleged and (5) special damages or per se district court’s opinion relied on credibility defamatory statements in the editorial actionability.” If the plaintiff is a public determinations not permissible at any were “of and concerning” her. Walker fi gure, they must prove that the defendant stage before trial.” reasoned, like Rakoff, that Palin’s name acted with actual malice. Walker Fourth, Walker held that Palin’s was included in the editorial and that a concluded that it was “undisputed” that proposed amended complaint, which reader could conclude that SarahPAC Palin was a public fi gure. included material from Bennet’s testimony, was associated with Palin. Sixth, Walker Second, Walker observed that Rakoff “contain[ed] allegations that paint a also agreed with the district court that took an “unusual” step by holding an plausible picture” of “Palin’s overarching Defamation, continued on page 38 37 Defamation, continued from page 37 v. Washington Post Company LLC , although the central claims that the Post’s No. 2:19 00019 (E.D. Ky. 2019). Eastern reporting was negligent could hold legal a reasonable reader could fi nd that the District of Kentucky Judge William weight. “I can’t say out of hand there alleged defamatory statements “[were] Bertelsman held that several of the alleged would be no legal basis for these claims,” factual, namely that Palin, through her defamatory statements by the Post were she said. “There is an argument to be political action committee, was directly “protected opinion” under the First made . . . it could certainly have been linked to the Loughner shooting.” Amendment. He also found that other harmful to Nick Sandmann’s reputation.” Finally, Walker wrote that the court alleged defamatory statements were not Kirtley added, “I think some of the stuff in “recogniz[ed] that First Amendment “about” or “concerning” Sandmann, or did the complaint probably won’t withstand protections are essential to provide not constitute defamation per se, meaning a motion to dismiss because the issue of ‘breathing’ space for freedom of statements that accuse an individual of the Washington Post being liable for what expression,” citing Sullivan. He added crimes or immoral acts and are presumed other news organizations might pick up that although the issue before the to be harmful. and repeat, that’s just not sound.” court was “how district courts evaluate The case arose on Jan. 18, 2019 when Clay Calvert, director of the Marion pleadings . . . [n]othing in this opinion several media outlets, as well as numerous B. Brechner First Amendment Project should therefore be construed to cast social media accounts, circulated photos at the University of Florida, agreed with doubt on the First Amendment’s crucial and videos of an alleged confrontation Kirtley, adding “The underlying theme constitutional protections.” Walker between Sandmann and Phillips during of the whole lawsuit is that this is the continued, “Indeed, this protection is two separate rallies taking place at the liberal news media making a story fi t its precisely why Palin’s evidentiary burden National Mall in Washington, D.C. The preconceived narrative of white male at trial — to show by clear and convincing Native American marchers were attending students who support Donald Trump being evidence that Bennet acted with actual the Indigenous Peoples March. The racist.. . . What is the objective standard malice — is high,” in contrast to Palin’s Covington Catholic High School students for if someone is or is not racist?” “hurdle” before the Second Circuit, which were attending a pro life March for Life The Sandmann family fi led similar was only whether she had plausibly rally. One photo depicted Sandmann $250 million lawsuits against CNN and stated a claim for defamation necessary staring at Phillips, prompting some NBC. As the Bulletin went to press, to proceed to full discovery. Walker observers to criticize Sandmann for those cases remained pending. (For therefore vacated the district court’s appearing to mock or taunt Phillips. The more information on the confrontation, ruling and remanded the case for further Washington Post fi rst reported on the lawsuit, and commentary from media proceedings. incident after a video of the encounter, experts, see Covington Catholic High The full ruling is available online at: which was recorded by a participant in School Student Sues Washington Post and http://www.ca2.uscourts.gov/decisions/ the Indigenous Peoples March, as well as CNN for Defamation in “Federal Judge isysquery/f022b471 8853 4b35 be76 several photos, were posted by the Twitter Dismisses Defamation Lawsuit Against ce33eebf6092/1/doc/17 3801_opn. account @2020fi ght. BuzzFeed News; News Organizations pdf#xml=http://www.ca2.uscourts.gov/ On Feb. 19, 2019, Sandmann’s family Face Signifi cant Defamation Lawsuits and decisions/isysquery/f022b471 8853 fi led a lawsuit alleging that the video Settlements” in the Winter/Spring 2019 4b35 be76 ce33eebf6092/1/hilite/. As was “selectively edited” in order to issue of the Silha Bulletin.) the Bulletin went to press, no further show Sandmann as the aggressor and On July 26, 2019, Judge Bertelsman announcements were made in the case. that “the Post actively, negligently and dismissed the complaint “in its entirety.” In an August 6 emailed statement to recklessly participated in making the He explained that under Kentucky law, CNBC, Palin’s lawyers, Elizabeth Locke [video] go viral on social media,” without a defamation claim requires “(a) a false and Ken Turkel, wrote, “This is — and investigating the validity of the video or and defamatory statement concerning has always been — a case about media the Twitter account. The complaint further another; (b) an unprivileged publication accountability. We are pleased with the asserted that the Post ignored journalistic to a third party; (c) fault amounting at Court’s decision, and we look forward standards when interpreting the incident least to negligence on the part of the to starting discovery and ultimately as Sandmann engaging in “acts of racism publisher; and (d) either actionability of proceeding to trial.” by ‘swarming’ Phillips, ‘blocking’ his exit the statement irrespective of special harm In a separate statement, New York away from the students, and otherwise or the existence of special harm caused Times spokesperson Danielle Rhoades engaging in racist misconduct,” despite a by the publication.” Bertelsman wrote that Ha wrote, “We are disappointed in the “plethora” of other evidence was available the issue before the court was whether decision and intend to continue to defend online to give a more accurate view of the statements at issue were “about” and the action vigorously.” the incident. The complaint claimed that “concerning” Sandmann, whether they the Post did this in order to “advance were fact or opinion, and whether they Federal Judge Dismisses $250 Million its well known and easily documented, constituted defamation per se. Lawsuit Against The Washington Post biased agenda against President Donald Bertelsman then turned to the 33 On July 26, 2019, the Cincinnati J. Trump,” and requested $250 million in alleged defamatory statements raised Enquirer reported that the U.S. District damages. in Sandmann’s complaint. Bertelsman Court for the Eastern District of Kentucky Following the fi ling of the lawsuit, primarily focused on the fi rst article had dismissed the $250 million lawsuit several media experts argued that published by The Washington Post fi led against The Washington Post Sandmann would face challenges regarding the confrontation between by the family of Nicholas Sandmann, in winning the case. In a January 18 Sandmann and Phillips, titled “‘It was the Covington Catholic High School interview with Sinclair Broadcast Group getting ugly’: Native American drummer student involved in a January 2019 (Sinclair), Silha Center Director and Silha speaks on the MAGA hat wearing teens confrontation with Nathan Phillips, a Professor of Media Ethics and Law Jane who surrounded him” (Article One). He Native American man, at the Lincoln Kirtley argued that much of the rhetoric fi rst held that several of the statements in Memorial in Washington, D.C. Sandmann in the complaint was “legally irrelevant,” the article did not mention Sandmann by 38 name, nor did they provide a description as tweets about Sandmann by The presidential candidate Sen. Elizabeth of him. Instead, several of the statements Washington Post . He held that the articles Warren (D Mass.), among others. The referred to the entire group of high and tweets “contain[ed] substantially the complaint alleged that the defendants, school students participating in the same statements” and, therefore, the same by tweeting links to the video and photos rally. As a result, many of the alleged analysis provided for Articles One, Two, of the alleged confrontation between defamatory statements were not “about” and Three applied. However, Bertelsman the Covington Catholic students and the and “concerning” Sandmann, according to noted that Articles Six and Seven named Native American Activists, “circulated Bertelsman. Sandmann, meaning they were “about” false statements about [the students] to Second, Bertelsman wrote that “[f]ew him. However, Bertelsman wrote that the millions of people around the world.” The principles of law are as well established rest of the analysis applied because the complaint further alleged that “[s]everal as the rule that statements of opinion are statements were largely opinion and did of our Senators, most famous celebrities, not actionable in libel actions.. . . [T]his not constitute defamation per se. and widely read journalists, collectively rule is based on the right to freedom Bertelsman concluded by writing that used their large social media platforms, of speech in the First Amendment.” Phillips “did not see” his confrontation perceived higher credibility and public Bertelsman concluded that under the First with Sandmann the same way Sandmann followings to lie and libel minors they Amendment, Kentucky law, and Eastern did and “passed these conclusions on never met, based on an event they never District of Kentucky court precedent, “the to [the Post].” Bertelsman continued, witnessed.” The complaint added that statements that Sandmann challenges “They may have been erroneous, but, the defendants had “the opportunity to constitute protected opinion,” which as discussed above, they are opinion correct, delete, and/or apologize for their could not “form the basis for a defamation protected by the First Amendment.” false statements, but each refused[.]” claim.” He reasoned that many of the He therefore dismissed Sandmann’s The complaint argued that the students terms used by the Post in Article One motion. The fulling ruling is available were private fi gures, meaning they were “inherently subjective” and did not online at: https://www.dropbox.com/ did not need to prove “actual malice,” convey “actual, objectively verifi able sh/vtdrvruh3b453gm/AACIXLWpIHFb meaning that the alleged defamatory facts.” Bertelsman added that although Q6Tvt67jrVm2a?dl=0&preview=90726. statements were made with knowledge Sandmann argued that his intent was to SANDMANN.WaPo.Order+granting+MTD. of falsity or reckless disregard for the diffuse the confrontation, Phillips reached EFS.Doc+47.pdf. truth, as required by New York Times a different conclusion and “interpreted In a July 26 statement, the Sandmann Co. v. Sullivan, 376 U.S. 254, 278 80 Sandmann’s action (or lack thereof) as family wrote that they were “disappointed” (1964). The complaint alleged defamation blocking him and not allowing him to that the complaint was dismissed. In per se against each defendant, contending retreat.” the statement, Ted Sandmann, Nicholas’ that the alleged defamatory statements Finally, Bertelsman held that because father, was quoted as saying, “I believe “disgraced and degraded the plaintiffs Sandmann had not alleged special fi ghting for justice for my son and family and held them up to public hatred, damages, he had to prove that the is of vital national importance. If what was contempt, ridicule, and/or caused them to challenged statements amounted to done to Nicholas is not legally actionable, be shunned and avoided.” The complaint defamation per se. Bertelsman ruled that then no one is safe.” sought damages ranging between $15,000 Article One could not “reasonably be read Lin Wood, who represented Sandmann, to $50,000 for each student from each as charging Sandmann with” committing said in the statement that the family would of the defendants, totaling at least a crime. He added that Sandmann’s appeal the ruling. “We look forward to $1.44 million and at most $4.8 million. assertion that Article One insinuated having an appellate court take a fresh look The full complaint is available online at: that he had “assaulted” or “physically at the issues in this Important case,” Wood http://juryverdicts.net/SandmannKenton. intimidated Phillips” was “not supported said. PDF?fbclid=IwAR3joDM4C3ilk7VCCOgTA by the plain language in the article, which Shani George, The Washington Post’s peAqpp62D0tXlamnB5H2waCS3OLKiXM states no such thing.” Furthermore, communications director, said in a July 26 RTXV Xc. As the Bulletin went to press, a the article could not be construed to email to The Washington Times that the judge had not ruled in the case. mean that Sandmann “engaged in racist newspaper was “pleased” by the decision. In an August 2 interview with the conduct” or yelled “racist taunts.” “From our fi rst story on this incident Cincinnati Enquirer, David Marburger, Therefore, according to Bertelsman, to our last, we sought to report fairly a Cleveland based First Amendment the article would not “tend to expose and accurately the facts that could be attorney, argued the students would face [Sandmann] to public hatred, ridicule, established from available evidence, the challenges in winning the case. “Assuming contempt or disgrace, or to induce an perspectives of all of the participants, and politics don’t intervene in the judicial evil opinion of him in the minds of right the comments of the responsible church system, this is exceedingly weak,” he thinking people.” and school offi cials,” she wrote. “We are said. “I can’t see anything that is colorably Regarding Article Two, Bertelsman pleased that the case has been dismissed.” actionable as defamation.” Marburger held that the challenged statements were Meanwhile, on Aug. 2, 2019, several added that many of the alleged defamatory largely repeated from the fi rst article, media outlets reported that eight statements at issue were “loose, fi gurative” except for a quote from a joint statement Covington Catholic High School students or “rhetorical hyperbole,” which the U.S. released by Covington Catholic High had fi led a defamation lawsuit in the Supreme Court ruled are protected by the School and the Diocese of Covington, Kenton County (Ky.) Circuit Court First Amendment in Milkovich v. Lorain which “[did] not mention Sandmann,” against 12 individuals, including New Journal Co., 497 U.S. 1 (1990). but only spoke of “students” generally. York Times White House correspondent Similarly, the headline of Article Three, Maggie Haberman, CNN contributor SCOTT M EMMEL “Marcher’s accost by boys in MAGA caps Anna Navarro, former CNN personality SILHA BULLETIN E DITOR draws ire,” also did not refer to Sandmann. Reza Aslan, ABC News chief political Bertelsman then turned to Articles analyst Matthew Dowd, Mother Jones Four, Five, Six, and Seven, as well editor in chief Clara Jeffery, and 39 Judge Allows Media and Public to Make Copies of Evidence from Trial of Former Minneapolis Police Offi cer, Restricts Live Streaming of Noor Sentencing Hearing n May 22, 2019, Hennepin Police Department’s (MPD) BWC concerns over the public seeing the County, Minn. Fourth policy requiring the offi cers to activate video that shows Damond in “extremely Judicial District Court the cameras in a “critical incident,” compromising situations.” Judge Kathryn Quaintance such as “the use of deadly force by or In response to Quaintance’s order, ordered that members of against a Minneapolis police offi cer.” on March 29, Ballard Spahr LLP Othe media and public be allowed not Responding Offi cers Scott Aikins’ attorney Leita Walker wrote a letter to only to view, but also to make copies of, and Thomas Fahey’s BWCs recorded Bernhardson on behalf of a coalition of key evidence from the trial of former part of the aftermath of the shooting. media organizations (Coalition), which Minneapolis Police MPD changed its BWC policy in the included Star Tribune Media Company, Offi cer Mohamed days following the shooting, listing LLC, CBS Broadcasting Inc., MPR, ACCESS Noor. Noor was additional circumstances in which TEGNA, Inc., Fox/UTV Holdings, LLC, found guilty offi cers were required to turn on their the AP, Hubbard Broadcasting, and the on April 30 of BWCs. Minnesota Coalition on Government third degree murder and second degree On April 30, 2019, Noor was found Information (MNCOGI). The letter manslaughter for shooting and killing guilty on the third degree murder and argued that the First Amendment and 40 year old personal health coach second degree manslaughter charges, common law guarantee press and Justine Damond in 2017. Minnesota and was acquitted on the second degree public access to criminal proceedings, v. Noor , No. 27 CR 18 6859 (2019). murder charge. Noor was sentenced citing Globe Newspaper Co. v. Superior However, Quaintance ordered that to 12.5 years in prison on June 7. Court, 457 U.S. 596, 606 607 (1982) fi ve graphic police body worn camera Additionally, according to court and Richmond Newspapers, Inc. v. (BWC) videos depicting Damond documents, the City of Minneapolis Virginia , 448 U.S. 555, 580 (1980), in receiving medical treatment be edited reached a $20 million settlement with which the U.S. Supreme Court held to blur her face and exposed body, Damond’s family after the verdict. that “the right to attend criminal trials as well as mute some noises made by The legal battle around access to the is implicit in the guarantees of the Damond. courtroom and trial evidence began on First Amendment.” The letter also The events around the shooting of Sept. 19, 2018 when Hennepin County cited Nebraska Press Association v. Damond began shortly after 11:30 p.m. prosecutors fi led a motion asking Stuart, in which the U.S. Supreme on July 15, 2017 when Noor and fellow the Fourth Judicial District Court Court held that restricting the media’s offi cer Matthew Harrity responded to prohibit the disclosure of some freedom to communicate with trial to a 911 call by Damond, who was evidence in the case, including grand participants and to report what they reporting a possible assault in an alley jury testimony, performance review say would constitute a prior restraint, in Minneapolis. Within minutes, Noor documents, and BWC video of the “the most serious and least tolerable and Harrity arrived in a police car aftermath of the shooting, reasoning infringement on First Amendment outside Damond’s home, after which that it was confi dential data under the rights.” 427 U.S. 539, 559 (1976). Damond walked towards the vehicle in Minnesota Government Data Practices Although Quaintance fi led an her pajamas, approaching the driver’s Act (MGDPA). Minn. Stat. § 13.01 et seq. amended order easing some of the side door. During a March 29, 2019 pretrial restrictions on the public’s and the Harrity later told investigators that hearing, Quaintance and Fourth Judicial press’ access to the trial, she did he was startled by a “loud sound,” District Chief Judge Ivy Bernhardson, not address the BWC footage or the which, allegedly, was Damond slapping citing the need to preserve “order and restriction of courtroom sketch artists or thumping the back of the police decorum,” ordered that the trial remain from recording what transpired at the SUV, though prosecutors refuted this in a courtroom containing about two trial. The Coalition summarily fi led an allegation during the ensuing jury trial, dozen seats, about half the size of additional motion and memorandum which began on April 1, 2019. Moments other courtrooms in the same building. objecting to the “anticipated de later, Noor, who was in the passenger Quaintance also banned electronic facto closure of the courtroom when seat, allegedly pulled his gun and shot devices, including cellphones, laptops, certain evidence — including, but across Harrity, who was in the driver’s and recording devices from the not limited to, video footage and seat, through the driver’s side window, courtroom, as well as from an overfl ow photographs — are permitted to be hitting Damond in the abdomen. room that provided additional seating. viewed only by the jury and other Damond, who was not carrying a Additionally, Quaintance announced trial participants,” as well as “any gag weapon, died at the scene. that the public and reporters would not order barring the courtroom sketch The Associated Press (AP) reported be provided access to the BWC video artist from depicting trial participants on Sept. 18, 2017 that although Noor recorded after the shooting of Damond, [including jurors] or otherwise barring and Harrity had eventually turned nor to additional photos from the members of the press from reporting on on their BWCs after the shooting, medical examiner’s offi ce. Quaintance what transpires during the trial and/or they had missed the most pivotal ruled that only jurors would be able on statements trial participants make moments, despite the Minneapolis to see the footage, citing privacy outside the courtroom.” 40 On April 9, Quaintance announced Schumacher, 392 N.W.2d 197, 203 item entered into evidence at public during a hearing that she would (Minn. 1986), in which the Minnesota session of trial. Once the evidence has make the trial evidence available, as Supreme Court held that the First become known to the members of the well as allow sketch artists to draw Amendment right to access trials public, including representatives of jurors, citing the “need to follow court extends not only to the trial itself, but the press . . . it would take the most precedent” and that there “is no role of also to judicial records. The motion extraordinary circumstances to justify victim privacy in the First Amendment.” concluded that the First Amendment restrictions on the opportunity . . . to On May 13, Quaintance issued a right therefore extends to “the right to see and hear the evidence, when it is written order requiring the Hennepin copy those records.” in form that readily permits sight and County District Court Public Affairs The Coalition then applied the sound reproduction” (emphasis in Communications Specialist and the four part test articulated in Richmond original). court’s criminal administrative staff to Newspapers and Press Enterprise Co. The motion added that although the “allow media representatives access v. Superior Court , 478 U.S. 1, 13 14 common law right is not absolute, the to and the opportunity to view the (1986), which would allow a judge to “‘most extraordinary circumstances’ trial exhibits in this case.” However, restrict access to the trial and trial have typically been limited to those she did not rule on whether members evidence. The four part test requires: involving intimate privacy rights of of the media or public could copy the • The party seeking to restrict living victims where no public offi cials exhibits. access must demonstrate or servants were involved, and the (For more information on the a substantial probability of copying could impact the ability to shooting of Damond, the Noor trial, prejudice to a compelling interest. conduct a fair and impartial trial.” and the legal battle over access to • The party seeking to restrict Fourth, the motion cited the the courtroom and trial evidence, see access must demonstrate Minnesota Rules of Public Access to “Media Coalition Wins Legal Victory that there is no alternative to Records of the Judicial Branch, which to Access Body Camera Video in Trial adequately protect the threatened stated that “[r]ecords of all courts and of Former Minneapolis Police Offi cer” interest. court administrators in the state of in the Winter/Spring 2019 issue of the • Any restriction on access must be Minnesota are presumed to be open to Silha Bulletin.) narrowly tailored. any member of the public for inspection On May 16, 2019, the Coalition • Any restriction imposed on access or copying at all times during the fi led a motion calling on Quaintance must be effective in protecting the regular offi ce hours of the custodian of to allow members of the media and threatened interest for which the the records” (emphasis in original). public to make copies of trial exhibits. limitation is imposed. Finally, the Coalition argued The motion fi rst explained that The motion argued that the State that access to and copies of the “[a]lthough the question of Mr. Noor’s had not met this high bar, including trial evidence “should be granted guilt or innocence may be resolved, because it had not provided a immediately” because, under First there remain many open questions” compelling interest for prohibiting Amendment jurisprudence, “any about the shooting. As a result, the copying of evidence. The Coalition delays are in effect denials of access, motion argued that thorough, accurate asserted that the prosecution’s claim even though they may be limited in reporting of those questions required that the evidence could impact time.” The motion cited Nebraska “a full understanding of the evidence post trial proceedings or any appeals Press Association, in which the presented at trial” and that such was a “speculative, conclusory Supreme Court found that “[d]elays understanding could “only be achieved argument.” The motion also argued that imposed by governmental authority” if members of the Coalition are able alternatives to a blanket prohibition are inconsistent with the media’s to view and copy that evidence so that of copying evidence were available, “traditional function of bringing news they can study and refer back to it over including restricting copying for only to the public promptly.” the coming weeks, months, and even certain exhibits. Additionally, the The motion therefore requested that years as they continue to report on motion contended that “prohibiting Quaintance “enter an order rejecting these issues of utmost pubic interest copying of the trial exhibits would not the State’s position and authorizing and concern.” be effective” because members of the its staff to make copies of all trial The Coalition added that not being Coalition were “pursuing copies of exhibits that are able to be copied (i.e., able to make copies of the evidence the trial exhibits in the possession of documents, photographs, video and “would greatly diminish the breadth, various government agencies, and the audio recordings and the like) available quality, and usefulness of the news MGDPA is clear that all ‘investigative to the press and public upon request” reporting on one of the most important data presented as evidence in court and that such actions should be taken issues of our time — gun violence, shall be public.’” Minn. Stat. § 13.82, “immediately.” The full motion is particularly that perpetrated by police, subd. 7. available online at: https://z.umn.edu/ and the possibility that the race of both Third, the Coalition argued that the NoorMediaCoalitionResponse. victim and perpetrator may impact the State had also not met its burden under On May 22, 2019, Quaintance prosecution and punishment of such “the press and public’s common law released a written order allowing “copy violence.” right to access and copy trial exhibits.” access to trial exhibits.” The order Second, the motion argued that The motion cited several federal circuit fi rst acknowledged that there was the “State ha[d] not met its burden court cases, including In re NBC, 635 a “presumption in favor of copying to overcome the press and public’s F.2d 945, 952 (2nd Cir. 1980), in which exhibits received in the course of First Amendment right to access and the Second Circuit held that there “is [a criminal trial” under a “common law copy trial exhibits.” The motion cited common law] presumption in favor of right of access.” The order cited Minneapolis Star & Tribune Co. v. public inspection and copying of any Evidence, continued on page 42 41 Evidence, continued from page 41 evidence provides that “[e]xhibits after learning that she had “prohibited will be made available for viewing live streaming and real time reporting Nixon v. Warner Communications, within reasonable timeframe after of [the] sentencing hearing[.]” Walker Inc., 435 U.S. 589, 597 599 (1978), in they have been deposited with court explained that Quaintance had earlier which the Supreme Court found that administration at the conclusion of issued an order “granting various “[i]t is clear that the courts of this a trial.” Quaintance ordered some media organizations’ requests to cover country recognize a general right to additional administrative procedures, the sentencing proceedings by audio inspect and copy public records and including that “all arrangements to and visual means. Although that order documents, including judicial records view or obtain copies of exhibits placed certain limitations on what and documents.” The order added that must be referred to the Hennepin could be recorded, nothing in that order the Court held in Nixon that there County District Court Public Affairs restricted the media’s use of the feed.” was no First Amendment right to copy Communications Specialist.” The full In a series of emails between trial exhibits, though it acknowledged court and MPR that later cases, including Richmond staff, it became Newspapers, had “held otherwise.” “The State’s position opposing the clear, according Quaintance concluded that “[a]t copying of any trial exhibits is overbroad. to Walker, that the end of the day, the common law The State does not cite, nor is the Court the court had standard is all that is required for the prohibited live Court to grant, in large part, the Media aware of, any case where copy access to streaming and Coalition’s request to copy the trial all of the trial exhibits has been denied real time reporting exhibits in this case.” She added, “The by the trial court.” of the hearing. State’s position opposing the copying Walker contended of any trial exhibits is overbroad. The that “once a — Judge Kathryn Quaintance, Hennepin Country, State does not cite, nor is the Court court fi nds that aware of, any case where copy access Minn. Fourth Judicial District Court cameras must to all of the trial exhibits has been be permitted at denied by the trial court.” Quaintance order is available online at: https://z. the sentencing — which is what the therefore ordered that members of umn.edu/NoorTrialExhibitMotion. Court found here — any restriction the media and the public be allowed On May 24, the Star Tribune and on how the feed is used would be “access to and the opportunity to view MPR reported that about 36 pieces an unconstitutional prior restraint and copy the exhibits in this case.” of evidence from the Noor trial were under the First Amendment.” MPR However, the order contended made public, including recordings of therefore requested that Quaintance that “images of the decedent’s bare Damond’s 911 calls, a video recorded “lift any oral or written restriction on breasts, of her face in distress, as by a bicyclist immediately after the use of the audio/video feed and that well as the sounds of her gasping for shooting, and BWC videos recorded [she] clarify before the sentencing breath, moaning, and vomiting, are of by responding offi cers. One such hearing begins that the Court is not limited value for the accurate reporting video was recorded by offi cer Jesse prohibiting live streaming of the feed or purposes for which the Media Coalition Lopez’s BWC and depicted him telling real time reporting about the hearing, seeks to copy the trial exhibits” and Noor “Just keep to yourself.. . . Keep in whatever form the newsrooms, in the that such graphic evidence could be your mouth shut until you have to exercise of their editorial discretion, exploited “for improper purposes say anything to anybody.” Some of deem appropriate (e.g., on their should it be released.” Quaintance the released evidence is available websites, through social media, etc.).” therefore ordered that fi ve BWC online at: http://www.startribune. However, in a June 17 email to Silha videos containing such images could com/evidence in noor trial released Bulletin Editor Scott Memmel, Walker only be viewed by the public and the thursday/510332962/?refresh=true. stated that Quaintance “did not offer media after copies of the exhibits were On June 11, KMSP TV, Minneapolis’ [her] an opportunity to elaborate on redacted by the prosecution, including Fox affi liate, and WCCO TV, the prior restraint issue,” even though blurring Damond’s face and exposed Minneapolis’ CBS affi liate, reported that Walker was present in the courtroom. body, as well as muting some of her the fi ve redacted BWC videos had been Walker added that Quaintance had vocalizations. According to the Star released to those who had requested neither responded to her June 6 email, Tribune on May 24, the fi ve videos were copies. Fox 9’s report and portions nor an additional email sent before the recorded by Noor, Harrity, and three of the footage are available online at: hearing on June 7. According to Walker, other offi cers responding to the scene. https://www.fox9.com/news/412111261 no media outlet live streamed the Finally, the order explained the video. sentencing hearing, though videos were administrative process for viewing One additional question related to posted after the fact, including by MPR. and copying of exhibits, including that media access to the Noor trial arose the Fourth Judicial District’s bench on June 6, 2019, the day before the SCOTT M EMMEL policy relating to public requests for sentencing of Noor, when Walker, on SILHA BULLETIN E DITOR viewing and obtaining copies of trial behalf of MPR, emailed Quaintance
42 U.S. Customs and Border Protection Continues to Raise Privacy Issues Amid Data Breach, Searches and Seizures of Electronic Devices n the summer of 2019, U.S. Alasaad v. Nielsen, No. 17 cv 11730 DJC, Data Breach of CBP Subcontractor Customs and Border Protection 2018 WL 2170323 (D. Mass. 2018). Raises Questions About Federal (CBP) continued to raise legal In October 2018, a report by the Agencies’ Collection of Sensitive questions and concerns related to a Committee to Protect Journalists Information and Surveillance of data breach exposing thousands of (CPJ) and Reporters Without Borders Americans Iphotographs of travelers, vehicles, and (RSF) indicated that journalists were On June 10, 2019, U.S. Customs and license plates, as well as the agency’s periodically the target of warrantless Border Protection (CBP) confi rmed continued practice of searching and searches and seizures against journalists in an emailed statement to reporters seizing journalists’ at U.S. borders. In March 2019, that a data breach exposed the photos SEARCHES electronic devices NBC 7 in San Diego reported that the of travelers and vehicles crossing at U.S. borders. AND SEIZURES U.S. government had created a secret the U.S. border, as reported by The On June 10, 2019, database of journalists and activists tied Washington Post on the same day. The CBP announced to the “migrant caravan,” a group of over announcement prompted criticism that a data breach of a subcontractor 5,000 migrants seeking asylum at the from observers who raised concerns had exposed the photos of thousands U.S. Mexico border in November 2018, about federal agencies’ collection of of travelers and vehicles crossing U.S. further demonstrating that journalists sensitive data, as well as CBP’s extensive borders. The revelation prompted can be the target of border agents. (For authority and surveillance of Americans. concern from observers, including more information on the CPJ report In its June 10 emailed statement, CBP regarding the scope of federal agencies’ and the revelations by NBC 7, see announced that “[i]n violation of [its] collection of sensitive data, including “Journalists and Others Targeted at U.S. policies and without [its] authorization biometric information, as well as the Borders, Creating More Confusion and or knowledge, [a subcontractor] extensive authority of CBP to conduct Lawsuits” in the Winter/Spring 2019 issue transferred copies of license plate surveillance of travelers and the of the Silha Bulletin.) images and traveler images collected American public. Meanwhile, in a June Although some federal courts, by CBP to the subcontractor’s company 22, 2019 story for The Intercept, Rolling including the U.S. Courts of Appeals for network.. . . The subcontractor’s Stone magazine contributor Seth Harp the Fourth and Ninth Circuits, have ruled network was subsequently compromised documented his experience of having in favor of travelers’ First and Fourth by a malicious cyberattack.” The his electronic devices searched during Amendment rights, generally fi nding that statement added that CBP had removed a secondary screening by CBP agents, seizures of electronic devices require from service all of the subcontractor’s providing an additional example of the “reasonable suspicion,” the Eleventh equipment and that no CBP systems agency’s practice of conducting such Circuit has ruled otherwise, fi nding that were impacted. A spokesperson added searches without a warrant. “reasonable suspicion” is not necessary. later the same day that fewer than For several years, CBP’s practice CBP’s actions have also prompted 100,000 people were impacted, based on of warrantless searches and seizures legislative efforts by the U.S. Senate. “initial reports” and that “[n]o passport of electronic devices has prompted (For more information on lawsuits or other travel document photographs lawsuits by travelers asserting their by travelers against CBP, as well as were compromised and no images of First and Fourth Amendment rights. federal court rulings, including Casper’s, airline passengers from the air entry/exit For example, on Sept. 13, 2017, the regarding warrantless searches and process were involved.” American Civil Liberties Union (ACLU), seizures of electronic devices at U.S. According to The Washington the Electronic Frontier Foundation borders, see “Journalists and Others Post on June 10, although CBP did (EFF), and the ACLU of Massachusetts Targeted at U.S. Borders, Creating More not disclose what subcontractor was fi led a complaint on behalf of 11 Confusion and Lawsuits” in the Winter/ involved, “a Microsoft Word document travelers, whose electronic devices were Spring 2019 issue of the Silha Bulletin, of CBP’s public statement, sent . . . to searched and, in some cases, seized “Ninth Circuit Ruling and Federal [Post] reporters, included the name by CBP agents. Among the travelers Lawsuit Target U.S. Customs and ‘Perceptics’ in the title: ‘CBP Perceptics were two journalists, a journalism Border Protection for First and Fourth Public Statement.’” The Post therefore student, and an independent fi lmmaker, Amendment Violations” in the Fall determined that it was Perceptics raising heightened First Amendment 2018 issue, “U.S. Customs and Border LLC, a Tennessee based company that concerns about their “journalistic work Protection Actions Continue to Raise makes automated license plate reading product[s].” On May 9, 2018, U.S. District First and Fourth Amendment Questions” technology and connected database Court for the District of Massachusetts in the Summer 2018 issue, “Civil storage. An anonymous U.S. offi cial Judge Denise J. Casper denied a Rights Organizations, Federal Agency, who spoke with the Post alleged that motion by CBP, the U.S. Department and House of Representatives Raise Perceptics was “attempting to use of Homeland Security (DHS), and Different Issues Regarding Searches at the data to refi ne its algorithms to Immigration and Customs Enforcement U.S. Borders” in the Fall 2017 issue, and match license plates with the faces of (ICE) to dismiss the case, fi nding that “U.S. Customs and Border Protection a car’s occupants, which the offi cial the plaintiffs had plausibly alleged Searches of Electronic Devices, Data at said was outside of CBP’s sanctioned First and Fourth Amendment claims. U.S. Borders Raise Privacy and Legal use.” The source called the data Concerns” in the Summer 2017 issue.) Borders, continued on page 44 43 Borders, continued from page 43 any illegal or unethical behavior, and BuzzFeed News previously we stand ready to meet to discuss this reported on March 11, 2019 that CBP breach a “major incident,” though with the government in any setting and was “rushing” and “scrambling” to it did not involve a foreign nation. to demonstrate our support of the CBP implement a new facial recognition Perceptics was the subcontractor mission,” she said in a July 3 statement. program. According to U.S. Department under information technology giant Additionally, FCW, a publication of Homeland Security (DHS) and CBP Unisys, which was awarded a contract covering federal technology news, documents obtained by the Electronic in 2016 by CBP to upgrade license plate reported that in a July 9 hearing before Privacy Information Center (EPIC) scanners and other automated screening and shared with equipment along U.S. borders. BuzzFeed News, Previously, on May 23, 2019, The “It is outrageous that [the U.S. CBP’s goal was Register reported that Perceptics “ha[d] Department of Homeland Security] to use facial been hacked” and that its “internal allowed individuals’ sensitive data to recognition on fi les were pilfered, and [were] being “100 percent of offered for free on the dark web to be compromised, but this case also all international download.” The Register reported that highlights the risks of collecting this passengers” in the an individual using the pseudonym top 20 U.S. airports “Boris Bullet Dodger” had contacted information in the fi rst place.. . . This by 2021. the publication to disclose the hack, personal, sensitive [data] becomes a BuzzFeed providing “a list of fi les exfi ltrated from gold mine for bad actors, and the effects News’ revelations Perceptics’ corporate network as proof.” prompted a Among the fi les that were hacked and could be devastating for the victims of a March 12, 2019 posted were “fi les named for locations breach.” statement by and zip codes [and] .jpg fi les with names Sens. Ed Markey that refer to ‘driver’ and ‘scene,’” among — Sen. Ed Markey (D-Mass.) (D Mass.) and Mike others. TechCrunch reported on June 10 Lee (R Utah), in that it was initially unclear whether the which they called two incidents were linked, noting that the Homeland Security Committee, on DHS to “pause their efforts until although the Post implicated Perceptics, John Wagner, deputy executive assistant American travelers fully understand CBP had said that “none of the image commissioner for CBP’s Offi ce of Field exactly who has access to their facial data ha[d] been identifi ed on the Dark Operations, defended the agency’s use recognition data, how long their data Web or internet.” of facial recognition and biometric will be held, how their information will However, The Washington Post technologies, calling the data breach be safeguarded, and how they can opt reported on July 10 that during a hearing an “isolated incident.” Wagner also out of the program altogether.” The before the U.S. House of Representatives downplayed CBP’s use of the technology, statement noted that Sens. Markey and Homeland Security Committee on the stating, “What we’re doing is absolutely Lee had previously raised questions same day, CBP acknowledged that it was not a surveillance program.” He added about DHS’s use of facial recognition not informed of the data breach until that CBP’s programs were not set up to software in December 2017 and May nearly three weeks after the cyberattack easily segregate foreign visitors to the 2018. The full statement is available was fi rst discovered. Observers noted United States. online at: https://www.markey.senate. that the revelation demonstrated a On July 10, Gizmodo reported that gov/news/press releases/senators “clear symptom of the dangers of in a hearing the same day, CBP had also markey and lee call for transparency on the government’s mass gathering argued that it did not exceed its legal dhs use of facial recognition technology. of data on the general public using authority by utilizing facial recognition Similarly, in a June 13 letter to Kevin facial recognition cameras, license plate technology. CBP was “permitted only McAleenan, the acting DHS Secretary, scanners and other surveillance to collect the biometric information 23 U.S. senators “express[ed] concerns equipment.” of foreign nationals through what’s about reports that [CBP was] using facial Furthermore, on July 3, 2019, The known as the Biometric Exit Program,” recognition technology to scan American Washington Post and CNN reported that according to Gizmodo. However, citizens under the Biometric Exit Perceptics had been found “preliminarily the agency still “scan[ned] the faces Program,” calling it an “unprecedented ineligible” to conduct business with the of Americans at ports of entry in a and unauthorized expansion of the federal government, meaning federal pilot program designed to determine agency’s authority.” The letter added that agencies could not solicit new offers to whether travelers are or are not foreign the senators “were stunned to learn of or extend contracts with the company. nationals.” During the hearing, Wagner reports that the agency . . . use[d] facial According to government contracting argued that such practices were allowed recognition technology on American records published on July 2, the because CBP deleted the photos after 12 citizens” and that it was “unclear under company was found ineligible due to hours and that Americans could opt out what authority CBP [was] carrying “adequate evidence of conduct indicating of participating in the facial comparison out this program on Americans.” The a lack of business honesty or integrity, or process. Wagner added, “U.S. citizens full letter is available online at: https:// a lack of business integrity.” are clearly outside the scope of the wild.house.gov/sites/wild.house.gov/ Nevertheless, Perceptics biometric entry exit tracking. The fi les/CBP%20Facial%20Recognition%20 spokesperson Casey Self defended the technology we’re using for the entry exit Ltr.%20fi nal.%20.pdf. company’s record in working with the program we’re also using to validate the The statement by Sens. Markey federal government. “Perceptics and identity of the U.S. citizen.. . . Someone and Lee and the letter to McAleenan its management categorically denies has to do that.” were not the only instances of public 44 offi cials and other observers questioning Sen. Markey said in a June 21 Enforcement (ICE) agents had “turned CBP’s practices. Following the data statement, “It is outrageous that DHS state driver’s license databases into a breach, several observers expressed allowed individuals’ sensitive data to facial recognition gold mine, scanning concern with CBP and other agencies be compromised, but this case also through millions of Americans’ photos expanding their use of technology highlights the risks of collecting this without their knowledge or consent.” collecting sensitive and biometric information in the fi rst place.. . . This The practice was revealed by “thousands data from travelers and Americans. personal, sensitive [data] becomes a of facial recognition requests, internal American Civil Liberties Union (ACLU) gold mine for bad actors, and the effects documents, and emails” obtained senior legislative counsel Neema Singh could be devastating for the victims of a through public records requests by Guliani said in a June 10 statement, breach.” Georgetown Law’s Center on Privacy and “This breach comes just as CBP seeks In a June 21 article, Washington Post Technology and provided to the Post. to expand its massive face recognition reporter Drew Harwell wrote that the Neither Congress nor state legislatures apparatus and collection of sensitive data breach did more than “just [expose] had authorized such a system, though information from travelers, including 21 states did allow license plate information and social “If the government collects sensitive the FBI to scan media identifi ers.” She continued, “This driver’s license incident further underscores the need information about Americans, it is photos as of July to put the brakes on these efforts and responsible for protecting it — and that’s 2019, according to for Congress to investigate the agency’s just as true if it contracts with a private the Post. data practices.. . . The best way to avoid breaches of sensitive personal data is not company.” Journalist to collect and retain such data in the fi rst Details Searches place.” — Sen. Ron Wyden (D-Ore.) of His Electronic Rachel Levinson Waldman, senior Devices counsel at New York University (NYU) In a June 22, Law School’s Brennan Center for the faces and license plates of thousands 2019 story for The Intercept, Seth Harp, Justice, contended that the data breach of U.S. travelers. It also revealed the a contributing editor at Rolling Stone demonstrated the possible consequences inner workings of a complex surveillance magazine, reported his own experience of increased government monitoring network that border authorities have of having his electronic devices searched of travelers and use of biometric long sought to keep secret.” Harwell by U.S. Customs and Border Protection information and technology. “This contended that the data breach exposed (CBP) agents, providing an additional kind of breach highlights the dangers more than just photos of travelers and example of the expansive practice by of mass collection of sensitive data. vehicles, but actually included “so much border agents. And it should not come as a surprise,” material, totaling hundreds of gigabytes, Harp asserted that upon returning Levinson Waldman said in a June 21 that The Washington Post required from a seven day trip to Mexico for interview with The Washington Post. several days of computer time to capture work and showing his passport to a CBP “Large scale collection of personal it all.” agent, the offi cer repeatedly asked about information is not costless. Congress According to Harwell, the hacked the substance of the story Harp had must exercise vigorous oversight and documents “offer an unusually intimate been working on. When Harp refused to demand that agencies limit the sensitive glimpse of the machinery that U.S. provide any details, the agent asked that information they collect and safeguard offi cials depend on for the constant he follow him to a secondary screening the data in their possession.” monitoring of legal immigration area where Harp eventually revealed Dave Maass, a senior investigative through the border,” including “detailed that his story was an “investigative researcher at the Electronic Frontier schematics, confi dential agreements, journalism project to determine which Foundation (EFF) agreed. “The reasons equipment lists, budget spreadsheets, restaurant has the best guacamole in all for surveillance end up being driven by internal photos and hardware blueprints of Mexico.” profi t, as opposed to the needs for public for security systems.” Harwell wrote Harp alleged that two agents then safety,” he told the Post. “[Federal] that the documents also provided searched his luggage, with a third agencies shouldn’t be collecting more insight into President Donald Trump’s agent reading his “2019 journal, data than they absolutely need . . . or can administration’s “plans for expanding including copious notes to self on absolutely protect.” its use of license plate readers and work, relationships, friends, family, Sen. Ron Wyden (D Ore.) emphasized facial recognition cameras, including and all sorts of private refl ections I had the need for federal agencies to take such details as how many cameras happened to write down.” However, measure to protect personal data. are focused on which traffi c lanes at Harp wrote that the “real abuse of “If the government collects sensitive some of the busiest border crossings power” was a subsequent “warrantless information about Americans, it is in the world.” Among the documents search of [his] phone and laptop.” responsible for protecting it — and that’s were “fi nancial statements, project Harp explained that although the U.S. just as true if it contracts with a private budgets, internal passwords, sales and Supreme Court in Riley v. California company,” he said in a June 10 statement marketing material, and information had required that law enforcement get to The Washington Post. “Anyone whose about employees’ performance reviews, a warrant to search electronic devices, information was compromised should be insurance coverage[,] and pay.” the Court had not extended the ruling to notifi ed by Customs, and the government Additionally, Harwell cited the U.S. borders. (For more information on needs to explain exactly how it intends Post’s July 7 report in which it revealed the Riley decision, see “Supreme Court to prevent this kind of breach from that Federal Bureau of Investigation happening in the future.” (FBI) and Immigration and Customs Borders, continued on page 46 45 Borders, continued from page 45 or administered by CBP, or in which encrypted messages on WhatsApp, there is a national security concern” in Signal, and Telegram,” and also read Says Warrants are Required to Search order to conduct an advanced search. Harp’s “communications with friends, Cell Phone Data; Possible Implications The policy allows CBP agents to request family, and loved ones, [as well for NSA Telephony Metadata Collection” that an individual unlock portions of as . . . correspondence with colleagues, in the Summer 2014 issue of the Silha their electronic device and to detain a editors, and sources.” Another agent Bulletin.) device “for a brief, reasonable period searched Harp’s laptop, during which Harp also cited CBP’s 2018 policy, of time” if the agent cannot access the he looked through emails, internet Directive No. 3340 049A, titled “Border device. history, fi nancial spreadsheets, property Searches of Electronic Devices,” which Finally, like the 2009 directive, the records, and business correspondence. revised its 2009 directive on searches new policy includes some exceptions, After three hours, Harp was allowed and seizures of electronic devices at including when the device contains to leave, though not before the agents U.S. borders. The policy allows CBP “possibly sensitive information, copied his laptop’s serial number, as well agents, when searching an electronic such as . . . work related information as alphanumeric sequences within his device, to examine only information carried by journalists.” In such cases, phone’s settings. “that is resident upon the device and the information “shall be handled in In an interview with Harp, Alexandra accessible through the device’s operating accordance with any applicable federal Ellerbeck, the Committee to Protect system or through other software, tools, law and CBP policy.” The policy is Journalists’ (CPJ) North America or applications,” meaning agents may available online at: https://www.cbp.gov/ program coordinator, contended that not “intentionally use the device to sites/default/fi les/assets/documents/2018 Harp’s experience was not an isolated access information that is solely stored Jan/CBP Directive 3340 049A Border one. “There’s an opportunistic element remotely.” Search of Electronic Media Compliant. to it. It seems to be targeted towards The policy differentiates a “basic pdf. general intelligence gathering,” she said. search” from an “advanced search.” According to Harp, when he asked to “[CBP] take[s] a broad view of their A basic or “manual” search is one speak to an attorney, an agent told him mandate to ask these questions, and in which an agent, “with or without he could not because he was not under there can be repercussions if you refuse suspicion, . . . examine[s] an electronic arrest, but was simply not allowed to to answer. They’ll hold you for longer, device” including reviewing and enter the United States. Sophia Cope, search your devices, or fl ag you in the analyzing information. Conversely, an an attorney for the Electronic Frontier future.” She added, “We don’t think this advanced or “forensic” search occurs Foundation (EFF), later told Harp in should be happening at all.” when an agent “connects external an interview that “They’ve been pretty Harp’s full report is available online equipment, through a wired or wireless consistent. You don’t get a lawyer” when at: https://theintercept.com/2019/06/22/ connection, to an electronic device not going through secondary screening. cbp border searches journalists/. merely to gain access to the device, Harp reported that one CBP but to review, copy, and/or analyze its agent “spent three hours reviewing contents.” The policy requires that an hundreds of photos and videos and SCOTT M EMMEL agent have “reasonable suspicion of emails and calls and texts, including SILHA BULLETIN E DITOR activity in violation of the laws enforced
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.
46 The New York Times Discontinues Editorial Cartoons in Its International Edition; Canadian Publisher Ends Contract with Editorial Cartoonist n the summer of 2019, two editorial Winter/Spring 2018 issue of the Silha “The cartoon that ran [on April 25] was cartoons depicting President Bulletin. A website dedicated to the clearly anti Semitic and we apologize Donald Trump garnered worldwide coverage of this event is available online for its publication.” In addition to the criticism, leading to controversial at: http://stateofoursatiricalunion.dl.umn. Times , the Anti Defamation League, responses by The New York Times edu/.) the American Jewish Committee, and Canadian publisher Brunswick several members of Congress, President News Inc. (BNI). On April 29, the Times The New York Times Ends Trump, Vice President Mike Pence, and announced that its international edition Publication of Editorial Cartoons in others denounced Antunes’s cartoon as would no longer Its International Edition anti Semitic. EDITORIAL publish syndicated On April 29, 2019, The New York In an April 28 statement, Times Times announced that the Times ’ spokesperson Eileen Murphy said, “We CONTROL editorial cartoons after a cartoon international edition would no longer are deeply sorry for the publication of that appeared publish syndicated editorial cartoons an anti Semitic cartoon last Thursday in in its international edition on April 25 following criticism of a cartoon that the print edition of The New York Times was criticized as being anti Semitic by appeared on April 25. On June 10, 2019, that circulates outside of the United readers around the world. On June 10, the Times announced that it would also States, and we are committed to making the Times announced its international no longer publish daily political cartoons sure nothing like this happens again. version would also no longer carry in its international edition and ended Such imagery is always dangerous, daily political cartoons and therefore its relationship with its two contract and at a time when anti Semitism is terminated the contracts of its two cartoonists. Observers criticized the on the rise worldwide, it’s all the more contract cartoonists. On July 1, BNI Times ’ actions, contending that that they unacceptable.” She continued, “We have announced it was ending its contract were an “overreaction” and “horrible investigated how this happened and with editorial cartoonist Michael de decision[s].” learned that, because of a faulty process, Adder following his cartoon depicting The April 25 cartoon was drawn a single editor working without adequate President Trump playing golf and asking by Portuguese artist Antonio Moreira oversight downloaded the syndicated two dead migrants, “Do you mind if Antunes and depicted Isreali Prime cartoon and made the decision to I play through?” The actions by both Minister Benjamin Netanyahu as include it on the Opinion page.” On media organizations drew criticism a guide dog with a Star of David June 11, The Washington Post did not from observers around the world who dog tag around his neck, leading a identify the editor in question by name, emphasized the important role of blind President Donald Trump, who but reported that the person was located editorial cartoons in holding powerful wore a yarmulke, according to The in Hong Kong. individuals and institutions accountable. Washington Post on June 11, 2019. Antunes, a cartoonist for the The Silha Center for the Study of The cartoon was distributed through Portuguese newspaper Expresso, Media Ethics and Law, together with CartoonArts International, a company explained his cartoon in an email to the Association of American Editorial characterized in the April 29 Times the Jerusalem Post, writing, “Trump’s Cartoonists (AAEC), the Hubbard School article as “a New York based company erratic, destructive, and often blind of Journalism and Mass Communication, whose licensing deal with The Times politics encouraged the expansionist the Minnesota Journalism Center, and is several decades old.” The Times did radicalism of Netanyahu. To illustrate the Herb Block Foundation, sponsored not indicate whether its contract with this situation, an analogy occurred to a symposium in April 2018 marking the CartoonArts International had been me with a blind man led by a guide dog, 30th anniversary of the U.S. Supreme cancelled. The cartoon is available and, to help identify [Netanyahu], little Court’s ruling in Hustler Magazine, Inc. online at: https://twitter.com/yashar/ known in Portugal, I added the Star of v. Falwell , 485 U.S. 46 (1988), which status/1122164007316725760?ref_src= David, a symbol of the State of Israel and affi rmed the First Amendment right twsrc%5Etfw%7Ctwcamp%5Etweetem a central element of its fl ag.” Antunes of editorial cartoonists and satirists to bed%7Ctwterm%5E112216400731672 added, “I do not seek controversy. I try lampoon public fi gures. The symposium, 5760&ref_url=https%3A%2F%2Fwww. to make critical cartoons of situations titled “The State of Our Satirical Union: thedailybeast.com%2Fnew york times that seem to me wrong, unfair, and Hustler Magazine, Inc. v. Falwell at 30,” apologizes for anti semitic cartoon. undemocratic.. . . I have nothing against included six panels and two speeches On April 29, the Times reported that the Jews but I have many things against in which political cartoonists and First it received signifi cant criticism from the politics of Israel.” Amendment scholars discussed different readers around the world, who called On April 29, 2019, the Jerusalem Post aspects of the Hustler case, including the cartoon anti Semitic. The Times noted that Antunes won the top prize at threats to satire in the United States also reported that Bret Stephens, a the 20th International Salon of Cartoons and abroad, among other topics. (For Times Opinion columnist, denounced in Montreal in 1983. His winning cartoon more information on the symposium, the cartoon and asked the paper “to depicted “Israeli soldiers tormenting see “Spring Symposium Marks the 30th refl ect deeply on how it came to publish Lebanese women and children” in a style Anniversary of Hustler Magazine, Inc. anti Semitic propaganda.” In the same reminiscent of an infamous photo of v. Falwell , Discusses History, Purpose, article, an unidentifi ed New York and Impact of Political Cartoons” in the Times spokesperson similarly said, Cartoonists, continued on page 48 47 Cartoonists, continued from page 47 like a storm, falling upon newsrooms that freelance cartoonist Michael de in an overwhelming blow. This Adder had been let go by Canadian Nazis tormenting Jewish people during requires immediate counter measures publisher Brunswick News Inc. (BNI). the Holocaust. by publishers, leaving no room for The move prompted criticism from Previously, in 2015, the Jerusalem ponderation or meaningful discussions.” observers, especially cartoonists, who Post quoted an interview of Antunes He added, “I have consistently warned argued that editorial cartoons play an by Portuguese publication Observador about the dangers of those sudden (and important role not only in the United following the 2015 Charlie Hebdo attack often organized) backlashes that carry States and Canada, but around the in Paris, France in which brothers Said everything in their path. If cartoons world. and Cherif Kouachi forced their way are a prime target it’s because of their On June 26, de Adder tweeted a into the offi ces of the satirical French nature and exposure: they are an cartoon depicting President Donald newspaper and opened fi re with assault encapsulated opinion, a visual shortcut Trump standing next to a golf cart rifl es, killing 12 people and injuring 11 with an unmatched capacity to touch parked near a body of water. Trump more. Among the victims were Charlie the mind. That’s their strength, and their was depicted holding a golf club and Hebdo editor and cartoonist Stephane vulnerability.” Chappatte’s full blog looking down at two bodies lying at Charbonnier, as well as cartoonists post is available online at: https://www. his feet at the edge of the water, asking Jean Cabut, Bernard Verlhac, Georges chappatte.com/en/the end of political them, “Do you mind if I play through?” Wolinski, and Philippe Honore. Antunes cartoons at the new york times/. The bodies were drawn to resemble said, “The profession of cartoonist is The Times ’ decisions also led to Mexican photo journalist Julia Le Duc’s a profession of risk, we make risks criticism from observers. In a June 11 photo of father Oscar Alberto Martinez and take risks.. . . There is always fear interview with The Washington Post , Ramirez and his daughter Angie Valeria, there, but there is no other option but Daryl Cagle, head of the syndicate Cagle who died crossing the Rio Grande to defend freedom of expression.” (For Cartoons, said, “By choosing not to while trying to emigrate from Mexico more information on the attack, see print editorial cartoons in the future, to the United States. Within a few days, “Charlie Hebdo Attack Leaves Several the Times can be sure that their editors de Adder’s cartoon was shared on social Dead, Sparks International Debate on will never again make a poor cartoon media by several celebrities, including Limits of Free Speech” in the Winter/ choice. Editors at the Times have also actors George Takei and Mark Hamill, Spring 2015 issue of the Silha Bulletin made poor choices of words in the past. according to The Washington Post on and “Journalists Abroad Face Uncertain I would suggest that the Times should June 30. Legal Challenges; U.S. Television News also choose not to print words in the Although de Adder never offered BNI Reporters Slain During Live Report” in future – just to be on the safe side.” the chance to publish the cartoon in the Summer 2015 issue.) In a June 10 tweet citing Chappatte’s any of its newspapers, he was informed On June 10, 2019, the Times blog post, CNN correspondent and later that week that his contract had announced that it would no longer anchor Jake Tapper wrote, “This is been cancelled. In a July 14 piece for run daily political cartoons in its a horrible decision by the NYT.” Jen NBC News, de Adder noted that he had international edition, thereby ending its Sorensen, a political cartoonist for the contributed to BNI for 17 years. In an relationship with contract cartoonists Daily Kos, tweeted on the same day, interview with the Post, de Adder also Patrick Chappatte and Heng Kim Song. “By this standard of blaming an entire noted that the publisher made him its James Bennet, the editorial page editor medium for an editing failure, the NYT primary cartoonist in 2018, including at the Times , said that the newspaper should have no columnists left.” by putting his cartoons in newspapers was “very grateful for and proud of” In a June 12 opinion piece for The in Toronto and Halifax. “I had a good the work of two contract cartoonists. Guardian, cartoonist and author Martin relationship with my editors just four However, he added that the Times Rowson called the Times ’ “cartoon ban” days previous,” de Adder told the Post. “intend[ed] to do more such work” in the a “sinister and dangerous over reaction” “I had supplied my cartoons and there style of freelance writer Jake Halpern’s and a “gross overcorrection.” He were no issues. I replaced [or rejected] and freelance cartoonist Michael Sloan’s continued, “[T]his [goes] deeper than an cartoons whenever they wanted.. . . So nonfi ction series entitled “Welcome to over reaction to an ill judged cartoon. what normal human being wouldn’t think the New World,” which told the story of Cartoons have been the rude, taunting [the timing of his fi ring] was more than a a Syrian refugee family in a form similar part of political commentary in countries coincidence?” to that of a graphic novel and garnered around the world for centuries, and In his piece for NBC News, de the Times a Pulitzer Prize in 2018 for enhance newspapers globally and across Adder argued that he was let go for his editorial cartooning. The full series is the political spectrum, in countries from repeated criticism of President Trump. available online at: https://www.nytimes. the most tolerant liberal democracies to He wrote, “In my opinion, and given past com/series/syrian refugee family the most vicious totalitarian tyrannies. experiences, I think it’s likely I wasn’t welcome america. As we all know, they consequently let go for one Trump cartoon. It’s more In a June 10 blog post, Chappatte have the power to shock and offend. likely I was let go for all my Trump wrote, “I’m putting down my pen, with That, largely, is what they’re there for, cartoons” (emphasis in original). a sigh: that’s a lot of years of work as a kind of dark, sympathetic magic De Adder further contended that undone by a single cartoon — not even masquerading as a joke.” editorial cartoonists losing their jobs mine — that should never have run in for reasons like criticizing President the best newspaper of the world.” He Canadian Cartoonist Fired after Trump “does matter.” He continued, also criticized the Times ’ decision, “I’m Posting Cartoon of President Trump “Editorial cartoons have never been afraid this is not just about cartoons, but on Social Media more important, and with social media, about journalism and opinion in general. On July 1, 2019, several media outlets they have an increasingly broad reach. We are in a world where moralistic in Canada and the United States reported In a sense, they are a more powerful tool mobs gather on social media and rise 48 than they have ever been. Newspapers Nick Anderson, the Economist was “everything a political cartoon is are cutting one of their best assets when and Baltimore Sun cartoonist Kal supposed to be: pithy and hard hitting, they are at their most vulnerable. And Kallaugher, and Rob Rogers, who with a dash of nasty. The only thing that in turn, democracy is losing one of its was fi red in 2018 from the Pittsburgh provoked the publisher to fi re Michael most treasured safeguards.” De Adder’s Post Gazette allegedly because a de Adder was the target of the cartoon. full post is available online at: https:// number of his cartoons were found to be One of the things people like most about www.nbcnews.com/think/opinion/my critical of Trump or his administration. political cartoons is how blunt and rude editorial cartoon satirizing trump border (For more information on the fi ring of they can be — ironically, just the sort of crisis went viral then ncna1029431. Rogers, see “Pittsburgh Post Gazette attitude most MAGA hat wearing fans However, on July 1, 2019, the Fires Longtime Editorial Cartoonist Rob love in their president.” Canadian Broadcasting Corporation Rogers in the Summer 2018 issue of the Meyer cited the work of political (CBC) reported that BNI denied the Silha Bulletin.) cartoonist Thomas Nast, known as the claim that the cartoon of President When asked if he would continue Father of the American Cartoon, who Trump was the reason for terminating creating cartoons that are critical of waged a campaign in the 1870s against de Adder’s freelance contract. “This is President Trump, de Adder told the Post, William Magear Tweed, often referred to a false narrative which has emerged “I’m working on one now.” as “Boss” Tweed, who operated as the carelessly and recklessly on social In a July 6, 2019 article, San “boss” of Tammany Hall, the infl uential media. In fact, BNI was not even offered Francisco Chronicle opinion page editor Democratic Party political machine, and this cartoon,” the company said in a John Diaz quoted the responses of was frequently accused of corruption statement. “The decision [to replace de several cartoonists whose work regularly until his arrest in 1873. “[Political Adder with editorial cartoonist] Greg appears in that newspaper after he asked cartooning is] not subtle,” Meyer said, Perry was made long before this cartoon, them whether de Adder’s cartoon had “It’s not an eloquently crafted opinion and negotiations had been ongoing for crossed a line. Syndicated cartoonist hiding in long gray columns of Times weeks.” Signe Wilkinson replied, “What line, New Roman. It’s an oar in the face. Or as On June 30, 2019, The Washington anyway? People dying not quite over Boss Tweed famously put it, ‘I don’t care Post reported that de Adder planned the border line is over the line to me.” so much what the papers write — my to continue working for newspapers Wilkinson was a panelist at “The State of constituents can’t read.. . . It’s them in Halifax and Ottawa, and would also Our Satirical Union: Hustler Magazine, damn pictures.’” contribute to the American cartoon Inc. v. Falwell at 30.” outlet Counterpoint, recently created by Tom Meyer, another syndicated ELAINE H ARGROVE former Houston Chronicle cartoonist cartoonist, told Diaz that the cartoon SILHA C ENTER S TAFF
“The State of Our Satirical Union” has a website! A website featuring “The State of Our Satirical Union: Hustler Magazine Inc. v. Falwell at 30,” a symposium held April 20 21, 2018, is available online at: http://stateofoursatiricalunion.dl.umn.edu/
The website features videos of the event, slideshows with highlights of the event and cartoons drawn during the symposium, participants‛ biographies, and more!
Be sure to visit it today!
(“The State of Our Satirical Union” symposium was co sponsored by the Silha Center for the Study of Media Ethics and Law, the Association of American Editorial Cartoonists, the Minnesota Journalism Center, and the Hubbard School of Journalism and Mass Communication.),
49 Federal Judge Rules Controversial Undercover Video Maker Protected from Certain Damages by First Amendment n July 16, 2019, Judge William of the surreptitious recordings public, The complaint alleged that the defendants Orrick III of the U.S. District each alleging that Planned Parenthood did so by “using concealed electronic Court for the District of employees illegally sold fetal tissue for devices that make video and audio Northern California issued profi t. Planned Parenthood summarily recordings that transmit such recordings a tentative ruling in favor of denied the claims and argued that the through a wire or by radio.” Third, the Opro life activist David Daleiden, fi nding videos were deceptively edited and complaint alleged that the defendants that the First Amendment protected him manipulated. Nevertheless, fi ve separate violated state law by “intentionally and his anti abortion group, the Center for Congressional Committees, as well as record[ing] confi dential communications” Medical Progress several states, investigated Planned during conferences and private meetings. FIRST (CMP), from certain Parenthood in the ensuing weeks and Cal. Penal Code §§ 632, 634. months. Fourth, the complaint alleged that AMENDMENT damages sought by Planned Parenthood On Jan. 14, 2016, Planned Parenthood the defendants committed trespass on Federation of fi led a lawsuit in the Northern District Planned Parenthood’s property. The America, Inc. (Planned Parenthood). The of California against CMP, Daleiden, and complaint asserted that “exceeded request for damages arose after Daleiden the other fi ve activists. The complaint the scope of Plaintiff’s consent to and CMP employees had misrepresented fi rst alleged that the defendants had enter by knowingly and intentionally, themselves to gain access to, and record, “created pseudonyms, manufactured surreptitiously videotaping Plaintiff’s Planned Parenthood clinics across the fake identifi cation, stole one woman’s staff . . . without their knowledge or United States. Planned Parenthood identity, and used a credit card with a consent.” The complaint argued that Federation of America, Inc. v. Center fake name.” The complaint further alleged such actions led Planned Parenthood to for Medical Progress, No. 3:16 cv that the defendants had “leveraged the suffer “economic harm and irreparable 00236 WHO (N.D. Cal. 2019). Among ‘professional’ relationships they made harm,” including “dealing with security other claims, Planned Parenthood, a at the conferences to seek access to threats, property damage, governmental nonprofi t organization comprising 59 individual Planned Parenthood doctors investigations, harassment and member affi liates providing sexual health and affi liates, lying their way into private intimidation, online hacking, and other care in the United States and globally, meetings — and even inside secure harms that have been the direct result of argued that CMP should have to pay Planned Parenthood offi ce and clinical Defendants’ illegal conduct.” for the security measures implemented space[.]” Fifth, the complaint included a claim following the release of the surreptitious The complaint alleged that although of intrusion upon a private place. The videos recorded by Daleiden and the videos were “deceptively edited” and complaint argued that those working at other anti abortion activists, which “heavily manipulated,” they “did their Planned Parenthood facilities, as well as had prompted threats and violence intended damage,” leading to a “dramatic at annual conferences, had “objectively against Planned Parenthood clinics and increase in the threats, harassment, and reasonable expectation[s]” that their employees. criminal activities targeting abortion “private conversations” and “private In March 2013, Daleiden, who describes providers and their supporters and, in business conversations” would not be himself as a “guerilla journalist,” founded particular, Planned Parenthood health recorded. The complaint further alleged CMP to “investigate, document, and centers after the release of Defendants’ that the defendants therefore also violated report on the procurement, transfer, videos.” The complaint further contended the California Constitution’s protection for and sale of fetal tissue,” according that several Planned Parenthood privacy under Art. I § I. to CMP’s website. In 2014 and 2015, employees were also targeted by threats, Finally, the complaint also alleged civil Daleiden and anti abortion activists harassment, and violence. conspiracy and breach of contract, as well Troy Newman, Albin Rhomberg, Phillip The complaint included several as “unlawful, unfair, and fraudulent acts.” S. Cronin, Gerardo Adrian Lopez, and claims for relief, including fi rst The full complaint is available online at: Sandra Susan Merritt misrepresented under the Racketeer Infl uenced and https://www.courtlistener.com/recap/gov. themselves as representatives of BioMax Corrupt Organizations (RICO) Act, uscourts.cand.294859.1.0.pdf. Procurement Services LLC, a company 18 U.S.C. §§ 1962(c) and 1962(d), which During court proceedings, attorneys purportedly engaging in fetal tissue punishes those who organize to engage in for Planned Parenthood claimed over research, to gain access to several a pattern of illegal activity or a “criminal $20 million in damages, arguing Daleiden Planned Parenthood facilities, meetings, enterprise.” should be responsible for security and private conferences. The activists Second, the complaint alleged that measures taken by Planned Parenthood wore hidden video cameras and recorded the defendants violated the Electronic following the posting of CMP’s videos, hundreds of hours of conversations with Communications Privacy Act, according to The Washington Times Planned Parenthood staff. During this 18 U.S.C. § 2511, the federal wiretap law on July 22, 2019. The security measures same time period, Daleiden and others prohibiting any individual or organization included security cameras, bulletproof also gained entrance to the 2014 and 2015 from “intentionally intercept[ing], windows, and fencing at Planned annual meetings of the National Abortion endeavor[ing] to intercept, or procur[ing] Parenthood clinics. Federation (NAF), an association of any other person to intercept or endeavor (For more information on the abortion providers. to intercept, any wire, oral, or electronic background of the case, as well as the In July 2015, Daleiden made several communication,” among other provisions. legal dispute between NAF and CMP, 50 see Federal Judge Holds Daleiden and success on their claims.” The full ruling is intrusions into plaintiffs’ conferences his Attorneys in Contempt; California available online at: https://www.govinfo. and facilities and improvements to Attorney General’s Offi ce Refi les Felony gov/content/pkg/USCOURTS ca9 16 16997/ access security measures for conferences Charges Against the Video Maker pdf/USCOURTS ca9 16 16997 0.pdf. and facilities.” He also refused to dismiss in “Controversial Undercover Video On April 1, 2019, several media outlets Planned Parenthood’s privacy and trespass Makers Face Legal Action and Ethical reported that the U.S. Supreme Court claims. In a July 18 press release, CMP Concerns” in the Summer 2017 issue declined to hear an appeal by CMP to wrote that Orrick had “instructed the of the Silha Bulletin and “Grand Jury the Ninth Circuit’s ruling. The group parties to treat [the tentative ruling] as if it Indicts Creators of Undercover Planned had fi led a petition for certiorari to the were substantially fi nal.” Parenthood Videos; Possible Implications Court, requesting that it dismiss Planned The full ruling is available online at: for Undercover Newsgathering” in the Parenthood’s lawsuit under the anti SLAPP http://www.centerformedicalprogress. Winter/Spring 2016 issue.) law. According to Jurist on April 1, CMP org/wp content/uploads/2019/07/Dkt. On May 16, 2018, the U.S. Court of had also requested that the Court accept 718_Tentative Ruling.pdf. As the Bulletin Appeals for the Ninth Circuit affi rmed a the anti SLAPP case in order to clarify went to press, the trial had not begun in district court’s denial of a motion by CMP how state anti SLAPP laws apply in the the case. to dismiss Planned Parenthood’s lawsuit federal system. In its July 18 press release, CMP under California’s Strategic Lawsuit On July 16, 2019, Judge Orrick fi led claimed that the ruling “signifi cantly Against Public Participation (SLAPP) a tentative ruling in which he held that downsizes Planned Parenthood’s lawsuit, statute, Cal. Civ. Proc. Code § 425.16. “absent a defamation claim,” Planned reducing potentially over $20 million Planned Parenthood Federation Parenthood could not argue during the at issue to less than $100,000. Most of America, Inc. v. Center for upcoming trial in September 2019 that importantly, the ruling affi rms that Medical Progress, 735 Fed.Appx. 241 it was entitled to damages that were the citizen journalists exercising their First (9th Cir. 2018). The anti SLAPP statute “result of third party behavior and reaction Amendment rights to speak and publish provides that “[a] cause of action to the publication of the video recordings.” cannot be held liable for any bad actions against a person arising from any act . . Orrick wrote that he was “inclined to taken by others in the free marketplace . in furtherance of the person’s right of exclude from the case all damages that of ideas, absent a clear showing of petition or free speech under the United stem from third parties’ reactions to defamation or intent to incite imminent States Constitution or the California the release of the video recordings as lawless action. Planned Parenthood could Constitution in connection with a public impermissible publication damages barred provide no evidence or testimony in the issue shall be subject to a special motion by the First Amendment[.]” According to case to back up either accusation, and so to strike, unless the court determines that Orrick, these measures included “personal a lawsuit that was once an avalanche of the plaintiff has established that there is a security for plaintiffs’ staff and security charges has been reduced to essentially a probability that the plaintiff will prevail on guards for facilities; costs for physical trespassing dispute.” the claim.” CMP had argued that Planned upgrades to plaintiffs’ facilities (e.g., On July 17, Courthouse News reported Parenthood’s lawsuit was “an attempt security cameras, fencing, bulletproof that during a July 17 hearing before to silence and punish CMP and other glass); costs to fi x incidents of vandalism Orrick, one day after he fi led his tentative Defendants for gathering information and or arson; costs to address hacks of motion, Planned Parenthood attorney publishing their fi ndings.” plaintiffs’ computer systems (including Amy Bombse, a lawyer at Rogers, Joseph However, the Ninth Circuit found lost business due to inability to make O’Donnell PC, had said, “Their argument is that although CMP demonstrated that reservations), as well as costs to prevent ‘We didn’t break anything.’ We say, ‘Oh yes, “their acts arose from behavior aimed at future intrusion into computer systems.” you broke the sense of security that all our furthering their First Amendment speech However, Orrick left open the staff have in going to work every day and rights,” they had failed to demonstrate that possibility that Planned Parenthood attending conferences.’” “Plaintiffs had shown no probability of could argue damages “for investigating SCOTT M EMMEL SILHA BULLETIN E DITOR
Videos of past Silha Lectures, Symposia, and Fora are available on YouTube.
Go to: https://z.umn.edu/SilhaCentervideos
51 Attorney Kelli L. Sager to Deliver 34th Annual Silha Lecture: “In Defense of Public Trials: Access to Court Proceedings in the Internet Age” lmost a quarter of a century Noor Sentencing Hearing” on page 40 of the Year.” Sager has served in leadership after the O. J. Simpson criminal this issue of the Silha Bulletin and “Media roles in many bar associations and non trial riveted the country, the Coalition Wins Legal Victory to Access profi ts, including chairing the American public’s ability to observe Body Camera Video in Trial of Former Bar Association (ABA) Forum on or even read about court Minneapolis Police Offi cer” in the Winter/ Communications Law and the International proceedingsA has barely progressed. The Spring 2019 issue.) Bar Association’s (IBA) Media Committee. principle of open judicial proceedings Attorney Kelli L. Sager, best She has volunteered for the U.S. Court of is a hallmark of the U.S. judicial system, known for her representation of Appeals for the Ninth Circuit for more than predating the the media in the access issues that a decade, and is currently a member of the SILHA CENTER American arose during the Simpson trial, will Courts and Community Committee. EVENTS Revolution. Recent address these concerns and the The 34th Annual Silha Lecture is controversial civil importance of expanding — rather than sponsored by the Silha Center for the and criminal cases, such as Minnesota retracting — access rights in the digital Study of Media Ethics and Law. It will take v. Mohamed Noor , make it increasingly age when she delivers the 34th annual place on Monday, Oct. 28, 2019, starting important for the public to scrutinize what Silha Lecture on Monday, Oct. 28, 2019. at 7:30 pm, at Cowles Auditorium at the is happening in their courts. Yet despite Her lecture is titled, “In Defense of Public Hubert H. Humphrey School of Public modern technological advances that make Trials: Access to Court Proceedings in the Affairs on the West Bank of the University meaningful oversight of court proceedings Internet Age.” of Minnesota Twin Cities campus in and records easier than before, access to Sager represents media and Minneapolis. No reservations or tickets judicial proceedings remains inconsistent. entertainment companies, as well as are required. Parking is available in the Although many judges embrace these journalists, broadcasters, fi lmmakers, 19th and 21st Avenue ramps. Additional new tools that help to open the courts to newspapers, web publishers, and authors. information about directions and parking the public and press, the advent of social Among other accolades, Chambers USA can be found at www.umn.edu/pts. media has prompted others to limit the has ranked Sager for 10 consecutive The Silha Center for the Study of use of electronic devices, citing concerns years in its top tier of media attorneys Media Ethics and Law is based at the about privacy and defendants’ fair trial in the country, and she has been one of Hubbard School of Journalism and rights under the Sixth Amendment. Lawdragon’s 500 Leading Lawyers in Mass Communication at the University Political attacks on the judiciary have America since 2005. Sager is regularly of Minnesota. Silha Center activities, further complicated the issue. And to included in the Los Angeles Daily including the annual Silha Lecture, compound the problem, newspapers Journal’s list of Top 100 Lawyers, Top are made possible by a generous and other traditional media outlets face Intellectual Property Litigators, and Top endowment from the late Otto and dwindling resources to cover trials and to Women Litigators. Helen Silha. For further information, challenge restrictions on access. (For more In 2019, Sager received the “Excellence please contact the Silha Center at information on the Noor Trial, see “Judge in Advocacy” award from the Beverly Hills (612) 625 3421 or [email protected], or visit Allows Media and Public to Make Copies of Bar Association, and was named Best www.silha.umn.edu. Evidence from Trial of Former Minneapolis Lawyers’ Los Angeles First Amendment ELAINE H ARGROVE Police Offi cer, Restricts Live Streaming of and Media/Entertainment “Lawyer of SILHA C ENTER S TAFF
SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW Hubbard School of Journalism and Mass Communication University of Minnesota 111 Murphy Hall 206 Church Street SE Minneapolis, MN 55455 [email protected] www.silha.umn.edu (612) 625 3421
52