The "Who Counts as Press" Question Comes to Court

UPDATED BELOW

A district court judge in Portland, Oregon, just ruled that a blogger was not a "journalist" and therefore was not entitled to the First Amendment media shield law protection afforded the press by New York Times v. Sullivan the Oregon state statute. (The case did not reach the First Amendment question, though it was certainly lurking in the background: see below.) The judge ruled that Crystal Cox was not entitled to the protection because of her lack of professional affiliation, and in the end, she was hit with $2.5 million in damages for defamation.

Natural Language Versus the Fourth Amendment on Search

In doing the initial framing for an article on how to apply Helen Nissenbaum's theory of Contextual Integrity to the 4th Amendment, it has become apparent that there are differences between how natural language would classify whether something is a search, a reasonable search, or an excused or unexcused reasonable search, and how the law would classify the same action. Now this is not a mind-blowing observation, as it has been understood for some time that the fact of some things being classified as "not a search" for Fourth Amendment purposes is just kind of weird. However, I believe the differing categorizations of the two areas have implications when asking what an ideal Fourth Amendment doctrine would look like, so I'll explore that here.

Cultural Enforcement of the First Amendment

Source: ACLU Blog of Rights

Toward the beginning of the Occupy Wall Street protests, Yves Smith observed the following:

I’m beginning to wonder whether the right to assemble is effectively dead in the US. No one who is a wage slave (which is the overwhelming majority of the population) can afford to have an arrest record, even a misdemeanor, in this age of short job tenures and rising use of background checks.

This is an important observation, and in legal terms, she's right and it's very problematic. We've known forever that arrests are the best ways of chilling speech, and the dangers of being arrested are potentially more disastrous now than ever. Personally, as my bar application is pending, I'm not going to risk getting arrested, where I might otherwise be protesting down there. Even without great repercussions, many people simply do not want to go through the hassle of fighting a charge. Every day, the cops are arresting more and more of the protestors, and there seems to be little we can do about it on the legal front.

The First Amendment, as understood today, pretty much only protects against those government actions targeted at speech. So if the cops arrest people in a park because the park has closed for the night, that doesn't violate the First Amendment. Similarly if the cops had kicked people out of Zucotti Park to clean it, as was threatened last week. Of course, if it can somehow be proven that these facially speech-neutral laws were only enforced because of the speech content itself, that would constitute a violation, but that proof is a nearly impossible task.

That actually might not be a problem if there are some unregulated ways to reach an audience. However, in many locations, the parks all have closing hours, making a protest like this one, in which the occupation is part of the message, illegal in an entire locale, but still not cognizable in a First Amendment lawsuit. Marvin Ammori has a great article coming out in the Wisconsin Law Review that explores exactly this problem, albeit more in a mediated speech context. From the abstract:

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as "exceptions" to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment's normative underpinnings.

I agree with him completely, and when thinking about the First Amendment, my most frequent thought is simply "we're doing it wrong."

More generally, though, I think what this speaks to are the limits of law--even Constitutional law--as a tool for social change. If we have greater legal protections, such as outlawing criminal background checks for employment, or if we didn't criminalize so many things, maybe it wouldn't be a problem, but in reality, sometimes civil disobedience is in fact that only way to get noticed. What we must rely on then, is a culture that protects protest. We rely on prosecutors not to press charges and ruin our lives for protesting. We rely on cops to protect, not brutalize, but even more than that, we expect (as we have seen) that when cops do attack in an unjustified way, that fact is itself ammunition and amplification for the protests. We rely on a media that will acurately relay the views of people that are disenfranchised. None of these are things we currently expect the law to be able to provide.

The United States is showing that we do have a culture that is fairly pro-dissent, and we need to be promoting the cultural respect for dissent even more, rather than trying to rely on the First Amendment as a shield, because it is a broken one. This cultural promotion of dissent is the only way to get the media to actually report more views, for example. The ACLU sent out an email recently with the simple title "Dissent Is Patriotic." This is exactly what we need to tell everyone. The appeal to patriotism is a strong social cue that will help promote dissent. This sort of cultural change must accompy any appeal to law in order to make real change happen. That is not to say that law has no place. Personally, I believe we should be thinking about Constitutional regulation of those private companies that affect the democratic process (I'm writing an article about exactly that this year), but cultural norms are a powerful form of regulation in society and one we too often overlook.

Honoring Derrick Bell

Yesterday, a giant in modern legal thought passed away at the age of 80. Derrick Bell was best known as an early pioneer of critical race theory, a stream of legal thought that we have written about before in this blog. At the center of critical race theory is the rejection of objectivity. As Peggy McIntosh pointed long enough ago that Jacob complains it is too basic, white people cannot know all the privilege they possess just by virtue of being white. That is not a point about fault; rather it's a statement about our collective inability to escape our own expereince. While law is founded on "objective" principles, they are really the objective principles according to almost entirely white male judges and legislators over the centuries. Instead, critical race theory embraces narratives and a variety of perspectives, particularly those voices of color that were missing for all those years.

As an academic discipline, critical race theorists began pointing out the irony that so many of the legal academics writing about race and more generally, the academics that were even employed, were not people of color. If the fact of law being mostly written by white people was a problem, then obviously it was a problem that the legal commentary in the academy was also written by all white people. That's why I love this paragraph from the New York Times obituary:

Mr. Bell was the first tenured black professor at Harvard Law School and later the first black dean of a law school that is not historically black. But he was perhaps better known for resigning from prestigious jobs than for accepting them.

Eventually, for example, he left Harvard Law because they had not yet hired a black woman on the faculty. Because he believed that legal thought was not being shaped enough by black voices, he would not remain part of a school that used its immense influence to exacerbate the problem.

High Law School Tuition Accelerates Privilege Immensely

Professor Brian Tamanaha, who's been writing a lot on the economics of law school, wrote a good post about a month ago on how the high price of law school systematically helps the wealthy solidify their hold on elite legal positions:

The top schools, with some variation, distribute scholarships roughly along these lines: 50 percent of the students pay full fare, 25 percent get a discount of half or more, 25 percent get less than half off, and a handful of students enjoy full scholarships.

The key dynamic involves the students who are made to pay full fare. Typically, they will be in the bottom half of the LSAT/GPA profile of students admitted to the JD class at any particular school. The highest ranked schools have students with the highest LSAT/GPA combination—with LSAT numbers steadily falling as you travel down the ranking. For example, an applicant with a 171 LSAT would have placed in the bottom 25 percent of the class at Yale, but in the top 25 percent at Michigan, Penn, Berkeley, Virginia, Duke, and so on.

An applicant in this position would be confronted with a tough choice: go to Yale and pay full price ($50,750 this year), or attend a lower down school, say Duke ($44,722), with a tuition discount of half or more....

Applicants from wealthy families who can help financially wouldn’t hesitate to go to Yale. But applicants from middle class families—school teachers, middle management, small business owners, solo practitioner lawyers (parents who exhausted their resources helping their child make it through college without debt)—will find the Duke offer hard to turn down.

...

Imagining a choice between Yale and Duke is misleading because the downside does not seem so bad. But the phenomenon goes much further. Versions of this same choice play out all the way down the law school hierarchy, often with more dramatic differences at stake. Applicants at the bottom LSAT quartile point (166-168) who would be required to pay full price at Michigan, Penn, Cornell, Duke and Northwestern, would get substantial tuition reductions to attend any school ranked 20th or lower. Pay full tuition at Vanderbilt or attend Iowa, North Carolina, Wisconsin, Emory, etc., at a big discount? Frequently the pertinent choice will be between local alternatives. An applicant who scores 165 on the LSAT would be in the bottom 25 percent of the class at UCLA but in the upper 25 percent at Loyola Marymount. Pay full tuition at the former or get at least half-off at the latter? In all of these examples, the disparity in career opportunities entailed in the choice is considerable.

This is made all that much worse because the legal profession is probably the most elitist, credential-focused profession out there. There really is a notable difference between a Yale, Harvard, or Stanford degree and anything else, even a degree from Michigan, currently ranked #7. (Just look at the all Harvard-Yale Supreme Court.)

This credential reliance is especially pronounced in a recession. A large portion of my friends, Michigan graduates all, are currently unemployed. Oh, and ask me about the clerkship hunt some time. (But maybe wait a couple years. Thanks.) Then when you get maybe past the top 10, top 20 schools? Huge difference. As Tamanaha points out, Yale (1)/Duke (11) is a common financial choice. His Vanderbilt (T-16) comparisons were Iowa (27), Wisconsin (T-35), North Carolina (T-30), and Emory (T-30). These ranking differences are not huge numerically, but the opportunities are hugely disparate.

Note also that this is actually compounded on what we typically discuss when we talk about privilege based on class - getting a good elementary-high school education, having books in the home and time to read in summer, and these days, being able to pay for AP classes and extracurriculars (itself pretty absurd). Of course the same argument applies to college tuition, but everyone knows about that. And of course people in elite colleges more often get into these law schools in the first place.

The people graduating from these law schools go on to very powerful positions in government and eventually the federal judiciary. People often decry the fact that all the members of Congress are rich. Well, graduates of the top law schools make up the rest of the government. Seriously, lots and lots of lawyers there, mostly from elite schools, and due to crazy tuition hikes, they'll mostly have been born well off. Like all matters of privilege, it's near impossible for us to fully appreciate how our worldview has been shaped by our wealth, even when we know enough to try.

A rare tip of my hat to NYC Mayor Mike Bloomberg

New York City Michael Bloomberg announced today that he and George Soros are dedicating $130 million to improved the lives and job opportunities of young blacks and Latinos in the city:

The program, the most ambitious policy push of Mr. Bloomberg’s third term, would overhaul how the government interacts with a population of about 315,000 New Yorkers who are disproportionately undereducated, incarcerated and unemployed.

I've criticized Bloomberg before for not understanding the extent of poverty and disadvantage that exists in his own city, but this new initiative certainly deserves praise. As the graph above indicates, young men of color (and particularly blacks and Latinos) are suffer greatly from economic disadvantage. The wide-ranging program will invest in job training, recidivism reduction, education, and family life.

Debt Ceiling Issues - Is McConnell's Proposal Constitutional?

I've been busy studying for the bar, so I haven't really had a chance to comment on the debt ceiling shenanigans. I think the whole thing is ridiculous, but I've long given up hope that President Obama is a competent politician, even assuming he doesn't actually want the same thing as the Republicans. As a result, I lack the desire to say much about it.

But then something interesting happened last week (and due to aforementioned bar study, I haven't gotten around to posting this until now): Senate Minority Leader Mitch McConnell proposed a law, which to my mind, reads like a Constitutional Law issue spotter you might see on a first year final exam:

1. Next month Obama would receive approval to raise the debt ceiling $700 billion.
2. A "resolution of disapproval" would then be taken up by Congress on an expedited basis (i.e., no filibusters allowed).
3. If the resolution passes, Obama can veto it.
4. If he vetoes it, it requires a two-thirds vote of both houses to override.
5. If there's no override, the debt limit is increased, but Obama would be required to lay out a "hypothetical" set of budget cuts totalling $700 billion.
6. This would be repeated (in $900 billion increments) in the fall of 2011 and summer of 2012.

News Corp Is a Criminal Enterprise. Why Is Anyone Surprised?

Paul Krugman says what is plainly true:

At this point it’s starting to look as if News Corp is better viewed as a criminal enterprise than as a media organization.

Just to recap: A British News Corp paper, News of the World, shut down after 168 years because it got caught hacking into the phone messages of a missing 13 year old girl who turned up dead. Because her messages got erased, the family had renewed hope that she was alive. The same newspaper apparently hacked the phones of 9/11 victims. The Sun, also News Corp owned, hacked into former British Prime Minister Gordon Brown's son's medical records and the family legal files. Turns out, this has been going on a while:

Brown joins a long list of Labour politicians who are known to have been targeted by private investigators working for News International, including the former prime minister Tony Blair and his media adviser Alastair Campbell, the former deputy prime minister John Prescott and his political adviser Joan Hammell, Peter Mandelson as trade secretary, Jack Straw and David Blunkett as home secretaries, Tessa Jowell as media secretary and her special adviser Bill Bush, and Chris Bryant as minister for Europe.

They've also paid off police and secretly settled with former victims that found them out.

The Roberts Court's First Amendment: Where the Lochner Court Dare Not Tread

Last week, the Supreme Court came down with their latest attempt to destroy democracy by carving it up for purchase. The decision was Arizona Free Enterprise Club v. Bennett, a case challenging Arizona's opt-in public financing scheme. The scheme worked like this: Any candidate may agree to public financing, meaning that he receives funding from the state, and is limited to that funding. If, however, his opponent is privately financed and outspends him, the state gives him 94 cents on the dollar in matching funds, up to three times the original amount. Anything in excess of that, and he was out of luck. The Supreme Court struck this down as a violation of the speech rights of the privately funded candidate.

Think about this for a second. Where this provision cannot be said to do anything but create more speech, the Court struck it down because it suppressed the efficacy of the private spender's speech. Justice Kagan's dissent doesn't pull punches in pointing out the absurdity:

FEC Avoids Uncomfortable Questions in Approving Colbert's PAC

Colbert and attorney Trevor Potter at the FEC hearing

Today, the Federal Elections Commission approved Stephen Colbert's Super-PAC. A lot of the discussion surrounding this episode had to with what a rejection of his application would mean to Fox News and their horde of politician-TV personalities (Palin, Huckabee, etc.). I was more interested in the potential for an adjudication of who counts as "press" (partially because I figured this was an easy case). As I said before:

Onto the legal question: Should Colbert get the "media exemption" that is meant for the press? I don't see a principled way that he does not....

The Political Importance of Substantive Privacy Rights

Next year, I will be a Privacy Research Fellow at NYU's Information Law Institute. As I was applying, I decided to write a post explaining why I was applying to privacy jobs in the first place, and why we should all care about privacy from a political process point of view. I was thus already in the middle of writing this post when I found out last week about the fellowship, but it's pretty much unchanged from what it was. A little while ago, Frank Pasquale posted a review of Daniel Solove's Nothing to Hide: The False Tradeoff Between Privacy and Security, a book I immediately added to my reading list. While I can't yet speak to the book itself as there are intervening books on my reading list, the review hits the main reason I am interested in privacy:

Solove finds in the First Amendment a set of principles to guide a modern vindication of Fourth Amendment rights. We have a right to freedom of expression in large part because we cannot properly think for ourselves, develop our own personalities, or act as citizens without some guarantees that these activities will not draw undue attention from powerful individuals and institutions who do not share our views....

Quick Comments on Weinergate

Ok, this whole Weinergate thing is really, really, dumb. What is really does is confirm that Democrats are not really all that good at political warfare. Look, it sucks that Democrats are going to be held to a different standard than Republicans, especially given Democrats like Rep. Weiner campaign on sexual privacy and Republicans like Larry Craig on "family values." But that's the way of it. Period. So if you're going to be a Democrat and try to do some good in this world, you just can't do the stupid stuff like sending pics of your junk over the internet. The deck is stacked against our side, but we've got to overcome it for the good of the country.

Who Counts as the Press for Purposes of the Law?

Colbert pumps his fist after filing with the FEC

On Friday, Stephen Colbert went to the Federal Elections Commission to file for a "media exemption," allowing him to use Comedy Central's airtime to promote his (Super-)PAC. The Politico article I linked quotes a lawyer at campaign finance center, saying this could trigger a sweeping change with respect to corporate donations. He may be right, though I'm not so sure how many people besides Jon Stewart and Stephen Colbert straddle that media-entertainment divide and would exploit this for electoral purposes. However, I'm less interested in that than a related question: Who counts as the press for First Amendment purposes? And a follow up: Is that actually even the right question? It's been clear for some time due to the proliferation of blogging and "random acts of journalism" that law would have to address this question. Colbert may force the issue into a court.

The FBI Claims a Constitutional Right to Lie to the Courts

The FBI has claimed a right to lie to courts, not just withhold state secrets. This is amazingly brazen. It's also incredibly stupid, but I'll get to that in a second. The court's response:

The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

The United States Constitution entrusts the Judiciary with the power to determine compliance with the law. It is impossible for the Court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth....

For the Next Generation of Lawyers, LGBT Rights Are Not Debatable

Empty chairs, as seen on a screen outside Hill Auditorium

UPDATED BELOW

I graduated law school yesterday, but I only attended a portion of my commencement. Over 100 graduates and guests walked out of the ceremony before our guest speaker and homophobe, Senator Rob Portman, gave his speech. I will always remember this day.

A few weeks ago, I wrote about Michigan Law's selection of Senator Rob Portman as graduation speaker. He has an extreme anti-gay voting record as a Congressman. The fact that he was given the honor of speaking to us at our celebratory event has understandably caused a great deal of controversy, which I won't completely rehash here, since it is the subject of my earlier post. Earlier, I wrote:

I will not stand to listen to a homophobe tell me at my graduation that I have the whole world at my disposal, my whole life ahead of me, when he would deny access to a basic part of that world and a basic part of that life to a large portion of my class, my family, and my friends. I will not hear Senator Portman's speech because I will not sit for it. Nor will I be shaking his hand at graduation. I would rather walk out of my own graduation ceremony for which I have waited three long, hard years. I do not yet know how many of my classmates will join me. I can only hope that it doesn't come to that, and either Senator Portman or Dean Caminker manages to rectify the situation so that we can all enjoy what should be a celebratory day.

Well, it turns out that my classmates did join me, and I've never been prouder to be a Michigan Law graduate. Quite a feat for a day that had promised to make me ashamed of my school.

Cheering for Death and Other Reactions to Last Night's News

Last night, Jacob and I both took to Twitter, as we tend to do these days when big news is released. It was a crazy two hours or so of speculation and confirmation, dark jokes, reactions to the MSM coverage, elation and bloodlust, and odd looks at the elation and bloodlust. I wanted to share a few of my reactions from the announcement of Osama bin Laden's death, its coverage, America's reaction, and what it means going forward.

First Amendment Musings Re: Terry Jones and Violence

Terry Jones in court

The Koran-burning pastor, Terry Jones, came to Dearborn the other day basically for the purpose of painting Dearborn as friendly to Sharia law and suppressive of freedoms, as weird as that might sound. So of course, what happens? He's arrested and convicted of breach of the peace for planning a demonstration, which, well, isn't a crime. Of course, were it a crime, it would violate the First Amendment. Even if he had successfully executed a demonstration, it would have been protected by the First Amendment (unless barred by a content-neutral, time, place or manner restriction).

Anyway, as the article says, under current law, this is a pretty clear cut case, but it got me thinking. The mayor said that he was worried about violence, and that the prosecution was over a public safety issue. He's probably thinking about the murders that the perpetrators blamed on Terry Jones' last Koran burning. Under the prevailing standard, Brandenburg v. Ohio, only incitement to crime or violence is unprotected by the First Amendment, not encouragement or advocacy. Under the still-sometimes-cited-for-some-unknown-reason standard, "clear and present danger," which Brandenburg replaced, there was wider latitude to ban speech. Under either standard, intervening time and third-party decision-making made the connection to violence more remote, and thus the First Amendment protection of the speech greater.

Overton Defenestration

The Defenestration of Prague

There's been a lot of talk about Paul Ryan's budget. One thing I haven't seen though, is Ryan's budget discussed as a play for an expanded Overton Window, which is what I think it primarily is. For those unfamiliar with the concept, the idea of the Overton Window is that there is a generally acceptable range of positions that people are willing to debate on an issue. This is the Overton Window. If a player in the debate proposes something far outside of that window, then suddenly, more moderate proposals on that end of the window, or maybe even proposals previously outside the window, become debatable positions. The concept is similar to the negotiation strategy known as "anchoring," but in a political debate, rather than a two-party negotiation. The Bush Administration very successfully used this tactic all over the place, most notably with respect to torture, which went from never acceptable to suddenly being debatable to a large portion of the public, because some people were cheering for it outright.

Privilege Is That Which You Take for Granted

TransGriot

I was sort of daydreaming a day or two ago, waiting for the time (oh so close, yet oh so very far away) when I will no longer be a law student, and when I will be done with the bar exam. I was thinking how nice it would be to travel abroad for a bit. Then in that radical whimsy (by law student standards) that comes with daydreaming, I imagined that wow, it'd be cool to live abroad for some time. Then my thoughts turned to what it might be like to live in a country with an official religion, say Christianity. (Of course many of our current politicians believe the this is one such country, but I digress.) I got a little creeped out at the thought. The reason is that in this thought experiment, there is an official government declaration that because I am Jewish, I am other.

Michigan Law's Lesson in How Not to Treat a Student Body

Respecting someone's right to have an opinion is fundamentally different than respecting that opinion. Inviting someone who votes for constitutional amendments to ban gay marriage to speak at our graduation? That's an example of the latter.

I am sad to say that I attended a meeting this morning where I proposed a walkout of my own commencement ceremony. Our Dean, Evan Caminker, oblivious to the needs of his own students, has invited Rob Portman to speak at our Senior Day. Rob Portman is a distinguished alumnus of our fine institution, the junior Senator from Ohio, and, of course, a raging homophobe. Senator Portman:

1. Voted YES on Constitutional Amendment banning same-sex marriage.
   
2. Voted YES on banning gay adoptions in DC.
   
3. Supports a continued ban on gay people serving in the military.