When it comes to organizing and editing timely and important books on freedom of expression, Geoffrey Stone and Lee Bollinger make for an impressive duo. Simply consider two of their previous works: The Free Speech Century (2018) and Eternally Vigilant: Free Speech in the Modern Era Eternally Vigilant: Free Speech in the Modern Era (2002). Now they have ventured upon what may be the most ambitious of all of their publishing projects by way of an edited book tentatively titled Leaks: National Security v. Freedom of the Press (2021). Below is a sketch of their project along with a list of confirmed contributors.
At the time of the Pentagon Papers, the Supreme Court embraced two basic First Amendment principles.
→ First, because public employees can be compelled to comply with reasonable restrictions on what would otherwise be their First Amendment rights, those employees who have access to classified information generally can be prohibited from revealing such information to persons not authorized to receive it. The basic assumption is that the very fact that the information has been deemed classified is generally presumed to be sufficient justification for the government to prohibit its employees from making the information public without prior approval.
→ Second, if the press receives such classified information, it cannot constitutionally be enjoined from publishing it unless the government can demonstrate that the public disclosure of the information would create a clear and present danger of grave harm—a standard that is almost impossible to satisfy. (The Court in the Pentagon Papers case did not decide whether it would apply the same standard in a criminal prosecution for publishing such information, but that seems likely.) The Court has also held, by the way, that the press retains its First Amendment protection even if it publishes the information knowing that it was unlawfully leaked.
There is, of course, a bit of a puzzle in the juxtaposition of the two First Amendment standards governing the government employees, on the one hand, and the press, on the other. In an “ideal” world, one might think that the “right” standard both for the leaker and for the press should be whether the harm done to the nation’s security by the leak and/or publication outweighs the benefit to the public in knowing the information. But for complex reasons deeply embedded in the challenges of constitutional interpretation and the need for clarity in the law, the Supreme Court has rejected such an approach.
One more wrinkle worth noting about the First Amendment. It remains unclear whether a reporter can constitutionally be punished for actively soliciting a leak that she knows is illegal. Ordinarily, it is unlawful to solicit a crime. The Supreme Court has never directly addressed that question in the context of leaks, though.
In any event, this has been the general First Amendment approach to these issues ever since the Pentagon Papers. And the general, though not universal judgment, seems to be that this has worked pretty well for most of that time.
In recent years, though, things have become more complicated because of advances in technology and social media. Whereas when Daniel Ellsberg leaked the Pentagon Papers he had to smuggle pages of paper out of the Defense Department in order to Xerox them, and he then turned them over to The New York Times and the Washington Post, which are responsible and professional journals, today a leaker can steal billions of bits of information and can have it disseminated widely without ever going through a mainstream publisher like The New York Times or the Washington Post. As a result, the potential harm caused by such leaks, as well as the potential benefit, is far greater today than it was in the past. An important question is therefore whether, in light of those changes, First Amendment doctrine should change as well.
Questions to be Addressed
Against this backdrop, here are some of the kinds of questions that we hope our contributors will address:
- Have unlawful leaks in the past disclosed information that was valuable for the public to know?
- Have unlawful leaks in the past seriously damaged the nation’s security?
- On balance, have unlawful leaks in the past been more helpful to public understanding or more damaging to the nation’s security?
- Has the government taken all appropriate steps in its effort to prevent unlawful leaks by government employees? What else, if anything, should it do?
- Are there circumstances in which a government employee should not be disciplined or prosecuted when she leaks classified information? Should an employee have the defense (based on the First Amendment or public policy) that the benefit to the public from the leak outweighed (or substantially outweighed) the harm it may have caused to the national security? If not, why not?
- Does a government employee who thinks it important for classified information to be made available to the public have a meaningful process available to her so that a fair-minded and independent judgment can be made that the information should, indeed, be disclosed to the public? If not, should there be such a process? If so, what should it look like?
- Should a reporter have a right (constitutional or otherwise) to try to persuade a government employee to leak classified information? Should the reporter have such a right even if the leak itself is unlawful? Should a reporter have a right (constitutional or otherwise) to refuse to disclose the identity of the government employee who leaked information to her? (There is no First Amendment right under current law because of the Supreme Court’s decision in Branzburg v. Hayes, which rejected such a privilege. But should it be created as a matter of legislation?)
- In what circumstances should the press have a right (either constitutional or otherwise) to publish classified information that it knows was leaked unlawfully? Should that right exist even if the harm to the national security outweighs the benefit of the information to the public? If so, why? Should that be the relevant inquiry? If not, why not?
- How, if at all, should the law (constitutional or otherwise) change in light of the changes in technology, social media, and international affairs? And, critically, if “the press” is to retain its extraordinary protection, how are we to define “the press” going forward? Is someone who operates his own website “the press”?
- Should “the press” or the public have a “right” (constitutional or otherwise) to compel the government to disclose national security-related information.
These are illustrative of the types of issue(s) we hope the volume will address.
List of Contributors (To Date)
- Steven Adler, Reporters Committee for Freedom of the Press
- Keith Alexander, former Director of the NSA
- Emily Bell, Professor of Professional Practice at the Columbia University School of Journalism
Lee C. Bollinger, President and Seth Low Professor of the University, Columbia University
- John Brennan, former Director of the CIA
- Bruce Brown, Reporters Committee for Freedom of the Press
- Kathleen Carroll, former Executive Editor and Senior Vice-President of the Associated Press
- Richard Clarke, former National Coordinator for National Security and Counter-Terrorism
- Sarah Cleveland, Professor of Law at Columbia University with special expertise in international law
- Steve Coll, Dean of Columbia University’s School of Journalism
- Jack Goldsmith, Henry L. Shattuck Professor Law, Harvard University, and former Legal Advisor to the Department of Defense
- Avril Haines, former White House Deputy National Security Advisor
- Eric Holder, former Attorney General of the United States
- Jamil Jaffer, Founding Director of the National Security Institute at the Antonin Scalia School of Law at George Mason University
- Ann Marie Lipinski, Director of Harvard’s Nieman Foundation for Journalism
- Judith Miller, National Security reporter for FOX News
- Lisa Monaco, former Homeland Security Advisor to the President
- Michael Morell, former Deputy Director and Acting Director of the CIA
- Ellen Nakashima, Washington Post
- Susan Rice, former National Security Advisor to the President
- David Sanger, New York Times
- Louis M. Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University
- Allison Stanger, Russell J. Leng Professor of International Politics at Middlebury College and author of the book Whisteblowers (Yale 2019)
- Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law, The University of Chicago
- David Strauss, Gerald Ratner Distinguished Professor of Law, The University of Chicago
- Cass Sunstein, Robert Walmsley University Professor, Harvard University
Knight Institute Sends Letter to Rep. Ocasio-Cortez in Response to Alleged Blocking of Critics on Twitter
Recently, the Knight First Amendment Institute at Columbia University sent a letter to Rep. Alexandria Ocasio-Cortez in response to news reports that she may be blocking some Twitter users from her @AOC account because of their views. This is how the letter (signed by Jameel Jaffer and Katie Fallow, Alex Abdo, Carrie DeCell, and Jake Karr) begins:
We understand from news reports that you may be blocking some Twitter users from your @AOC account because of the views they have expressed. This practice is unconstitutional, and we are writing in the hope of dissuading you from engaging in it.
→ You can read the rest of the letter here.
Olson on How Not to Win an Argument About First Amendment Law
“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:
- “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]
- “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]
- “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]
- “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]
There’s more, go here for additional advice.
First Amendment Lawyer Ted Boutrous Honored by PEN America
This from First Amendment Watch:
Theodore Boutrous Jr., a litigator at Gibson, Dunn & Crutcher who specializes in media law and free press matters, is the 2019 recipient of PEN America’s Distinguished Leadership Award.
Last November, Boutrous represented CNN chief White House correspondent Jim Acosta, who had his White House press pass revoked for questioning President Trump’s immigration policies. More recently, Boutrous represented Playboy magazine reporter Brian Karem, who also had his White House press credentials revoked following a verbal altercation with Sebastian Gorka, a former White House aide and a conservative radio talk show host, in the White House Rose Garden.
“This award is especially meaningful to me because I have long admired the work of PEN America in protecting freedom of expression for writers and artists and because the First Amendment is under attack in this country – led by none other than the President of the United States. . . .,” Boutrous said in a statement.
Boutrous will be presented with the award on November 19 at the 2019 LitFest Gala in Los Angeles. Director Ava DuVernay will also be honored that evening with the Voices of Influence Award, as will songwriter Diane Warren, who will receive the Artistic Expression Award.
Four New & Notable Blog Posts
- Eugene Volokh, “Harm to Reputation Is Insufficient to Overcome the Strong Presumption in Favor of Public Access …,” The Volokh Conspiracy (Aug. 31, 2019)
- David Post, Sexting as Child Pornography, The Volokh Conspiracy (Aug. 30, 2019)
- Ruthann Robson, Missouri Federal Judge Finds State Representative Violated First Amendment by Twitter Blocking, Constitutional Law Prof Blog (Aug. 19, 2019)
- Steven Schwinn, Ninth Circuit Rejects Challenge to Electioneering Disclosure Requirement, Constitutional Law Prof Blog (Aug. 13, 2019)
New & Notable Book Review
- Nicholas Lemann, “Two Views of the Tumult on American Campuses,” New York Times (Aug. 20, 2019) — reviewing Safe Enough Spaces: A Pragmatist’s Approach to Inclusion, Free Speech and Political Correctness on College Campuses by Michael S. Roth, and The Assault on American Excellence by Anthony Kronman
Recently Released Books
- Ronald J. Krotoszynski Jr., The Disappearing First Amendment (Cambridge University Press, 2019)
- Stanley E. Fish, The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump (Signal Press, October 29, 2019)
- Russell A. Newman, The Paradoxes of Network Neutralities (The MIT Press, November 5, 2019)
- Erica Salkin, Private Schools and Student Media: Supporting Mission, Students and Community (Lexington Books, November 15, 2019)
- Daniel A. Farber, The First Amendment: Concepts and Insights (Foundation Press, 5th edit., November 5, 2019)
- Ellis Cose, Democracy, If We Can Keep It: The ACLU’s 100-Year Fight for Rights in America (The New Press, July 7, 2020)
- Melissa Schwartzberg, editor, Protest and Dissent: NOMOS LXII (NOMOS – American Society for Political and Legal Philosophy) Hardcover (March 3, 2020)
New & Forthcoming Scholarly Articles
- Christoph Bezemek, Insult of Public Officials: A Free Speech Perspective (forthcoming in Schauer/Stone (eds), Oxford Handbook on Freedom of Speech (2019)
- Ashutosh Avinash Bhagwat, The Conscience of the Baker: Religion and Compelled Speech, William & Mary Bill of Rights Journal (forthcoming 2019)
- Claudia Haupt & Wendy Parmet, Public Health Originalism and the First Amendment, Northeastern University School of Law Research Paper No. 353-2019 (Aug. 2019)
- Maayan Perel & Niva Elkin-Koren, Separation of Functions for AI: Restraining Speech Regulation by Online Platforms, SSRN (Aug.
New “So to Speak” Podcast with Alex Abdo
- So to Speak Podcast: Free Speech, Privacy, and President Trump’s Twitter Account with Alex Abdo
[In this] episode of So to Speak: The Free Speech Podcast, we are joined by Knight First Amendment Institute Litigation Director Alex Abdo to discuss free speech, privacy, and President Donald Trump’s Twitter account.
New “Clear and Present Danger” Podcast
In the 1760s and 1770s, Sweden and Denmark-Norway shortly became the epicenter of press freedom protections in Enlightenment Europe.
In 1766, the Swedish Diet passed the Press Freedom Act, making Sweden the first country in the world to provide constitutional protection to both the principles of press freedom and freedom of information. In 1770, Denmark-Norway, under the de-facto rule of German physician Johan Friedrich Struensee, became the first country in the world to abolish any and all restrictions on press freedom. Almost overnight, both Sweden and Denmark-Norway experienced a new vibrant public sphere with debate, discussion and trolling.
But in 1772, King Gustav III ended Sweden’s so-called Age of Liberty — and with it, the era of the liberal press. That same year, Struensee lost not only his power, but his hands, legs — and head — as he was dismembered and ousted in a coup that severely restricted press freedom.
But how did Sweden and Denmark-Norway become trailblazers of press freedom, if only for the briefest of time? Find out in this episode[.]
News, Editorials & Op-eds
- Billy Binion, PragerU’s Lawsuit Against Google Seeks To Rewrite the First Amendment, Reason.com (Sept. 2, 2019)
- Sonam Sheth & John Haltiwanger, Alexandria Ocasio-Cortez Says She Has the Right to Block Critics on Social Media — a Court Ruling Against Trump Suggests She Might Not, Business Insdier (Sept. 2, 2019)
- Adam Steinbaugh, Emory Law Professor Faces Termination Hearing for Using “N-Word” in Discussion of Civil Rights Case, Discussion with Student, FIRE (Aug. 30, 2019)
- Gov. Parson Told Not to Use First Amendment to Redact Information, Associated Press (Aug. 30, 2019)
- Federal Court Reinstates Suit by Videographers Claiming Minnesota’s Anti-Discrimination Law Violates Their Free Speech Rights, First Amendment Watch (Aug. 28, 2019)
- Allen Dickerson, Supreme Court needs to defend the First Amendment for Alaskan voters, The Hill (Aug. 28, 2019)
- Editorial, Conservative Group Argues First Amendment Should Apply to YouTube, Wall Street Journal (Aug. 26, 2019)
- Ken White, Don’t Use These Free-Speech Arguments Ever Again, The Atlantic (Aug. 22, 2019)
Video: Randall Kennedy Addresses the 2019 FIRE Student Network Conference
- Link to video here
2019–2020 Term: Free Expression & Related Cases
- Buchanan v. Alexander
- Carter v. Massachusetts
- Miller v. Inslee
- Thompson v. Hebdon
- Price v. City of Chicago, Illinois
- National Review, Inc. v. Mann
Pending Petitions: Free Speech Related
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