In May of 2010, a special agent from the FBI filed a request for a search warrant relating to a leak of national security information that found its way into the news.  The warrant, which was approved on May 28, 2010 and served on Google, ordered the popular email provider to produce certain emails from FOX News reporter James Rosen’s personal email account.

Notably, unlike the recent subpoena in the AP case, the warrant issued to Google was relatively narrow.  It required Google only to hand over the reporter’s emails between the reporter and his alleged source and emails sent over a short, two-day period around the time the article was published.

Nonetheless, the warrant has sparked outrage among the press.  As the Washington Post explained, quoting First Amendment lawyer Charles Tobin, “Search warrants like these have a severe chilling effect on the free flow of important information to the public.  That’s a very dangerous road to go down.”

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the  Act – until now.

The FBI official in this case relied on three statutes to travel this dangerous road.  First, a federal statute specifically allows the government to search through citizens’ emails.  Second, another allows the government to do so even where the emails sought are communications between a reporter and confidential sources so long as the information relates to the disclosure of national security information under the third and final statute.

Under the Electronic Communications Privacy Act (ECPA), the first statute, the government must obtain a search warrant for emails only if the emails sought are less than 180 days old.  If they are more than 180 days old, the government can obtain the records through a subpoena or a warrant.  The advantage to the government in seeking a warrant after the 180-day period is that they do not have to provide prior notice to the party whose emails are sought.

Normally, journalists would be exempt from ECPA’s lenient standards for the production of emails under the Privacy Protection Act (PPA).  The PPA was passed after the Supreme Court found no constitutional violation where police searched the newsroom of Stanford’s student newspaper with the hopes of seizing photos revealing criminality related to student protests.

Under the PPA, the government can search or seize a journalist’s work product or other documents if it is more likely than not that the reporter is “committing a criminal offense.”

There is an exception though: Even if the reporter is committing a criminal offense, it is unlawful for a government employee to search or seize a journalist’s work product if the only alleged offense “to which the materials relate consists of the receipt, possession, communication, or withholding of such materials.”

Thus, it might seem that illegal possession of classified information would still be protected by the PPA, where the only crime the government alleges is a reporter’s possession of classified information itself.

That is not the case.  When the information that the journalist received, possessed, or communicated is related “to the national defense, classified information, or restricted data [under the Espionage Act],” the exception does not apply.

Thus, if the government can show that the journalist violated the Espionage Act then, it can apply for a search warrant for the reporter’s work product notwithstanding the initial appearance that the PPA would protect the reporter’s work product.

Congressman Jack Kemp (R-NY) summed up the PPA before its near-unanimous approval in the House, “[The Privacy Protection Act] would not prevent the police from conducting necessary searches, but simply require them to obtain a subpoena (which involves a court hearing where the newspapers can state their case) instead of a search warrant (where the newspapers have no say).”

The Espionage Act, which the PPA incorporates in part when reporters possess classified information, is a World War I law that makes it, among other things, unlawful for someone who “ha[s] unauthorized possession of [sensitive information] relating to the national defense . . . willfully communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.”

In Rosen’s case, the government sought Rosen’s emails in connection with an investigation of Stephen Jin-Woo Kim, a government employee who allegedly disclosed to Rosen the contents of a classified report relating to North Korea’s nuclear capabilities.

Under ECPA, the government legally could, and chose to, get a warrant for Rosen’s emails and, therefore, did not have to give Rosen notice of the warrant.  Thus, Rosen did not have a chance to contest the seizure of his emails before the government forced Google to turn over the emails.

The FBI official wrote in an affidavit requesting a warrant against FOX News reporter James Rosen, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”

Despite ECPA, the government, under the PPA, was prohibited from obtaining a search warrant unless it could also show that Rosen received or possessed national security information in violation of the Espionage Act.  In other words, to get at Rosen’s emails, the government had to allege that Rosen, as a reporter, violated the Espionage Act and, as such, was not deserving of the PPA protections.

That is exactly what the government officials did in this case, writing, “[T]here is probable cause to believe that the Reporter has committed a violation of [the Espionage Act], at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim.”  And this is what is so chilling.

From what is publicly known, the government had not – since the passage of the Espionage Act in 1917 – ever alleged in a legal document that a journalist violated the Act – until now.  Apparently, the closest the government ever came to making such an allegation came during the George W. Bush administration.

In 2006, Attorney General Alberto Gonzales said on This Week, “There are some statutes on the book which, if you read the language carefully, would seem to indicate that [prosecuting journalists for disclosing classified information] is a possibility.”  The Administration never followed through on Gonzales’ Sunday morning musings.

The general understanding that reporters should not be prosecuted for or even alleged to be in violation of the Espionage Act was reflected in the Senate Judiciary Committee report on the PPA’s national security exception.

“The federal government has never employed a search warrant procedure [where a reporter possesses national security information] in large part because [it] present[s] a particularly sensitive policy problem,” the report reads.  “Press possession of governmental documents generally occurs when the press is critical of official policy or practice, and tensions are likely to be high.”

The report continues, “For the government to squelch such criticism by the forceful means of seizure, to which the press has no opportunity to object in advance, comes very close to forcing the issue of first amendment freedom versus the power of the government.  Broader search powers would be susceptible of abuse in chilling critical comment about the government.”

Due to these concerns, it was the Judiciary Committee’s intent that the national security exception to the PPA “would apply only if there was an allegation of an intent to injure the United States or give advantage to a foreign power.”  In other words, the Committee thought it was signing off on a law that required that the government not only show that a reporter violated the Espionage Act, but also show that the reporter intended to injure U.S. interests.

In an ironic twist of fate, the government official’s affidavit seeking the search warrant against Rosen cited that legislative history for the proposition that the PPA was only intended to protect “persons involved in First Amendment activities who are themselves not suspected of participation in the criminal activity for which the materials are sought.”  According to the government official, Rosen was not one of these innocent parties.

Less fatefully and likely more purposefully, the official did not direct the magistrate judge’s attention to the portion of legislative history that explained the intent requirement.  Most damningly, the government official never even alleged that Rosen intended to “injure the United States or give advantage to a foreign power.”

Instead, the government official wrote only, “The text of the June 2009 article reflects that the Reporter’s knowledge and understanding that the information the Reporter had received was intelligence information the disclosure of which could be harmful to the United States.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress. The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

“Knowledge and understanding” alone though – without an intent to injure – would not have been enough for the Senate Committee that shepherded the law through Congress.  The official, therefore, failed to satisfy the government’s “heavy burden,” according to the Committee, to merit a finding of this “exceptional circumstance.”

There are arguments to be made that the government’s actions in this case violated the First Amendment.  As I have explained elsewhere, the Supreme Court’s newsgathering jurisprudence “demonstrate[s] a state of affairs that has created a nearly impenetrable area of constitutional law that is nigh impossible to make any sense of.  Even more unfortunate, everyone knows that this is the case.”

This is not to say that constitutional concerns and arguments are not important; they are.  But, they are also much messier than statutory ones and also have a predilection for spurring endless and somewhat unproductive debates.

Taking the language of the PPA together with legislative history creates a much clearer picture of the government malfeasance in this case than looking through the constitutional lens.

The Senate believed – without objection from any House reports that this author is aware of – that it crafted a law requiring the government to show that a reporter intended to harm the United States or intended to benefit its enemies.  The government failed to do that here, and, therefore, the warrant should not have been granted and the government violated (albeit in good faith reliance on a warrant) the PPA.

On Friday, the Associated Press’s General Counsel Laura Malone received a letter from the Department of Justice.  It informed the AP that the United States government had seized records related to twenty phone lines used by AP journalists and other employees.  The records, which included personal cellphone and home phone records, were gathered over a two month period.

According to the Washington Post, the telephone records were seized in connection with investigations into recent national security leaks by government employees.

In a letter sent Monday, the President and CEO of the AP, Gary Pruitt, called the government’s actions a “massive and unprecedented intrusion” into the newsgathering process.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,”  Mr. Pruitt wrote.  “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two – month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Mr. Pruitt wrote.

In response to requests for comment, the DOJ told Business Insider, “We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations.  . . .  Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

Mr. Pruitt is exactly right: the actions are unprecedented.  While it is impossible to know exactly how many times the government has taken similar actions, only a handful of cases of news organizations and reporters have ever been challenged in the courts.  This small number of cases making it to the courts is a testament to the normal restraint the government showed in the past when it sought material from reporters.

According to the Reporter’s Committee for the Freedom of the Press, the DOJ has only issued eighty-nine subpoenas, seeking the identities of reporters’ confidential sources, to reporters.

In a Freedom of Information Act request sent in January by Lippmann Would Roll to the U.S. Attorney General’s Office, the DOJ said that it only collected fifty-four subpoenas over the same twelve-year-period reported by the Reporter’s Committee. Surprisingly, even though the Attorney General must approve subpoena requests, the DOJ indicated in its letter to LWR that “The Office[] of the Attorney General . . . do[es] not maintain all media subpoena files.”

Currently, LWR has a FOIA request in to the DOJ’s Criminal Division, the division that most likely collected the AP’s telephone records.

The actions taken against the AP are especially disconcerting as, unlike targeted subpoenas seeking the name of a single confidential source, the DOJ’s collection of AP telephone records are, apparently, a blanket collection of all telephone records relating to the twenty phone lines, which include the phones of the AP’s bureaus in New York and Washington, D.C.

Whenever the DOJ seeks to subpoena a reporter to force him to identify his source or seeks the telephone records of reporters, it must follow an internal regulation, 28 C.F.R. § 50.10.  Although the internal regulation does not create a private cause of action by which reporters could sue the DOJ for violating its terms, it does place supposed internal limitations on actions that U.S. attorneys can take when seeking records from the news media.

When a U.S. attorney seeks telephone records in a criminal investigation, he must show that a crime has occurred and that the information isn’t otherwise available from other sources.

The attorney must also show that he entered into negotiations with the news organization in an attempt to reach an amicable result and provided “reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it,” unless such notification would “pose a clear and substantial threat to the integrity of the investigation.”

Finally, “[t]he subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”

(The form that the DOJ’s Tax Division uses for such requests was sent to LWR after a FOIA request earlier this year.)

In general and according to the DOJ’s regulation, “[T]he approach in every case must be to strike the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.”

If the government failed to tailor its seizure of telephone records to those telephone lines relating to the leaks, which is likely as it apparently made no attempts to focus the investigation on a single reporter close to the leaks in question, it violated its own regulation.

Moreover, the government violated the regulation by failing to engage the AP in any negotiations, as it is completely unclear how negotiating with the AP in private would have damaged its leak investigation into a leak that had already occurred.

Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably. The gravity of the situation cannot be overstated.

Finally, if the DOJ failed to subpoena non-press citizens potentially related to the leak before it went after the AP records, it violated the regulation’s requirement that it seek information from alternative sources before seeking the telephone records of a journalist.

In the event that a U.S. attorney did violate the regulation, he or she would be subject to “an administrative reprimand or other appropriate disciplinary action.”  This remedy is, admittedly, not that satisfactory.  Thus, it is necessary to look for other solutions to this abuse of power.

In 1978, the Reporters Committee, news organizations, and reporters brought a lawsuit against several telephone companies in an attempt to force those telephone companies to inform them whenever the government was seeking their telephone records.  The case went up to the U.S. Court of Appeals for the District of Columbia, which rejected the reporters’ First Amendment argument.

“The Government’s good faith inspection of defendant telephone companies’ toll call records does not infringe on plaintiffs’ First Amendment rights, because that Amendment guarantees no freedom from such investigation,” the court found.

The court went on to emphasize that “it is clear that Government access to defendants’ toll-call records in no sense ‘abridges’ plaintiffs’ news-gathering activities within the meaning of the First Amendment.  Not every Government action that affects, has an impact on, or indeed inhibits First Amendment activity constitutes the kind of ‘abridgment’ condemned by the First Amendment.”

Even though the D.C. Court of Appeals decided in favor of the government thirty-five years ago, in the intervening years some U.S. Courts of Appeals have found that reporter’s may be protected from such interferences in some instances.  These conflicting findings have  created a fragmented legal environment where some U.S. Courts of Appeals recognize strong First Amendment privileges for reporters and some don’t.  In short, the issue is unsettled and begs for the U.S. Supreme Court to revisit it.

In the U.S. Courts of Appeals that embrace strong First Amendment protections, there is a good argument that the DOJ’s actions would be unconstitutional.  These courts require that information collected be relevant to a criminal investigation.  When the DOJ gave up on the targeted seizure of telephone records of, for example, the reporter who initially reported on the leak, it failed to entertain any questions of the relevance and scope of the information it was gathering.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.

The breadth of the seizure also raises questions as to whether the government essentially “‘annex[ed]‘ the news media as ‘an investigative arm of government.’”  The phrase has never been defined with any degree of specificity because the government has never undertaken such an effort to the degree it did with the AP.  In one famous case though, Justice Powell said that such a result would raise serious First Amendment questions.

Of course, however, this story goes beyond the mere violations of internal regulations and Supreme Court jurisprudence to shake the very foundation of an long and implicit agreement between the government and the press.  In the past, the government has respected the division between the press and itself, understanding that both parties rely on each other to fulfill their functions effectively.  Unfortunately, that agreement, which stood inviolate for the majority of United States’ history, has now been violated – perhaps irreparably.

The gravity of the situation cannot be overstated.  It is completely antithetical to the very theory of our democracy and a free press.  That theory is simple: for democracy to thrive, the press must be free to gather and disseminate news about the government to the citizenry without fear of reprisal or punishment.

As the Supreme Court said sixty-eight years ago in a case aptly captioned for the purposes of the present controversy, Associated Press v. United States, “The First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.”

For more coverage of subpoenas against journalists, please review these articles also available at LWR.

I have finally finished my thesis, Speak, and Speak Immediately: The Risen Subpoena, the Executive Branch, and the Reporter’s Privilege.  I hope to write an abridged version shortly, but law school is currently demanding most of my attention – or most of my procrastination anyway.  In the meantime, you can read the abstract below or read the thesis here.

Abstract

In 1972, Branzburg v. Hayes required the Supreme Court to consider whether the First Amendment to the United States Constitution conferred on journalists a right to quash grand jury subpoenas issued by the government.  The Court held in a five-to-four opinion that it did not.  Yet, in 2011, a federal district judge found that James Risen, a New York Times reporter, had a First Amendment reporter’s privilege that protected him from having to reveal his source for a book chapter about a secretive CIA operation.  This judge is not alone in finding such a privilege in spite of Branzburg; indeed, many judges have come to the same conclusion.  

This thesis, through an analysis of post-Branzburg cases at the federal courts of appeals level, attempts to map the current landscape.  It finds that Branzburg jurisprudence is in tatters, with some courts of appeals finding a reporter’s privilege and others not.  It further finds that the courts that do find a privilege fail to weigh the First Amendment interests in each case, opting instead for sweeping but vacuous pronouncements of the benefits of the First Amendment.

Taking this landscape under consideration, this thesis suggests that Branzburg is the problem – not the solution and offers a way for courts to escape from under Branzburg’s thumb by recognizing that subsequent case law has implicitly dismissed the presumption on which Branzburg is based.  It further extrapolates from this subsequent case law the principle that the First Amendment is implicated when the government or a private party acts adversely to a speaker because of his speech.  Having recognized that the First Amendment is implicated by subpoenas against journalists, it then argues that the only way to account for all of the interests involved is to identify and appraise the value of the First Amendment interests in light of First Amendment theory and weigh those interests against the countervailing interests.  Finally, it suggests how this approach informs the Risen case.

The Department of Justice is refusing to follow its own interpretation of the Freedom of Information Act (“FOIA”) by declining to grant fee waiver requests to independent journalists and bloggers.  This comes despite Congress’s intent to make such fee waivers available to journalists who do not fit neatly into the traditional definition of a journalist.

In 1966, Congress passed the FOIA in order to give citizens a right of access to information about how their government works or, for that matter, does not work.

As a Senate committee report on the FOIA said, “The committee feels that [the FOIA] would establish a much-needed policy of disclosure . . . .  A government by secrecy benefits no one.  It injures the people it seeks to serve . . . .  It breeds mistrust, dampens the fervor of citizens, and mocks their loyalty.”

On signing the bill into law, President Lyndon Johnson agreed, at least in writing, with the Senate committee, writing, “This legislation springs from one of our most essential principles: A democracy works best when the people have all the information that the security of the Nation permits.  No one should be able to pull curtains of secrecy around decisions which can be revealed without injury to the public interest.”

Since its passage in 1966, the FOIA “has become a cornerstone of American democracy, making it possible for Americans to find out what their government is doing and to hold it accountable for its actions.”

Unfortunately, many think that the FOIA is broken.  These opinions spring from a variety of perceived deficiencies.  One of the most glaring deficiencies, however, comes to the fees that agencies charge citizens who request information.

Normally, agencies charge requesters for costs of searching and duplicating documents.  These costs can be in the hundreds and thousands of dollars.  Because Congress was concerned that these costs may dissuade citizens from taking advantage of the FOIA, it decided to provide certain fee waivers.  Thus, in 1986, Congress amended the FOIA, directing agencies to waive fees for a search of responsive documents when “a representative of the news media” makes a request.

Senator Patrick Leahy, who along with a colleague in 1986, offered the amendment modifying fee waivers, explained that “[i]t is critical that the phrase ‘representative of the news media’ be broadly interpreted if the act is to work as expected.”  Indeed, with the rise of telecommunications and digital communications in the 1980s, Congress was concerned that agencies would deny fee waivers to new forms of media.

As the Senator explicitly acknowledged, “As new technologies expand, there are new methods of communications which disseminate information to people through media other than traditional print or broadcast media, and these entities should be considered as ‘representatives of the news media.”

Unfortunately, the 1986 amendments to the FOIA did not define the term of “representative of the news media.”  That task was left to the Office of Management and Budget (“OMB”).  The OMB adopted a relatively restrictive definition of “representative of the news media”: “The term ‘representative of the news media’ refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.”

This definition effectively made it impossible for independent journalists to receive fee waivers, leaving them subject to the prohibitive fees that the amendments intend to assuage, because they did not work “for an entity.”

Realizing this, in 2007, Congress again attempted to make fee waivers available to more people under the “representative of the news media” with the passage of the Open Government Act.  That Act did not adopt the OMB’s definition of “representative of the news media” as “any person actively gathering news for an entity.”

Instead, it changed the language to read: “In this clause, the term ‘a representative of the news media’ means any person or entity that gathers information.”  No longer then was a representative of the news media required to work for an entity; instead, any person or entity could qualify, which made fee waivers available to independent journalists.

At the time, the Act’s sponsor, Senator Leahy explained on the floor, “The bill ensures that Federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees.”

Senator Cornyn, a co-sponsor of the Act, felt the same way: “[The Act] grants the same privileged FOIA fee status currently enjoyed by traditional media outlets to bloggers and others who publish reports on the Internet.”

The DoJ protested the 2007 changes.  In a letter to Senator Leahy, then Acting Assistant Attorney General Richard A. Hertling acknowledged that “Section 3 of the legislation, titled ‘Protection of Fee Status for News Media,’ expands the definition of ‘representative of the news media.’“

Mr. Hertling also admitted that the Act’s amendments were intended to extend fee waivers to bloggers: “Section 3 of the legislation amends subclause (II) so that an agency ‘may not deny [to a representative of the news media] status solely on the basis of the absence of institutional associations of the requester, but shall consider the prior publication history of the requester’ including Internet publications.”

Guided by an understanding of the plain language of the amended FOIA, scholars agreed with the DoJ’s assessment of the changes to FOIA: “The Act opens the definition of news media to apply to bloggers and [I]nternet journalists who are not associated with a media institution.”

That was then.  Since the Act was passed, at least one DoJ division has asserted that the change of the law actually affected no change to the law.  In a recent request by Lippmann Would Roll for documents relating to subpoenas against the news media, the Civil Rights Division at the DoJ has refused to grant a fee waiver for a search of documents.

In the denial of fee waivers, the Civil Rights Division wrote that “current case law has not recognized blogs to constitute news media for purposes of a fee assessment.”  And, for that reason, it did not grant the fee waiver request.  An appeal is currently being drafted by LWR.

This denial is in direct conflict with the intent of Congress, and, more importantly, the plain language of the FOIA.  As the Senate committee report on the FOIA amendments explained, “[The amendments] make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity.”

Moreover, the denial conflicts with the Office of the Attorney General’s views of fee waiver requests by bloggers.  At least in the case of LWR, the Office of the Attorney General agreed to grant a fee waiver to LWR in the past under the same circumstances as the request to the Civil Rights Division.  The Civil Rights Division’s denial of these fees, then, are even inconsistent with the apparent policy of the Office of the Attorney General.

All that should matter when it comes to requests for fee waivers under the “representative of the news media” waiver is whether the requester is actually gathering and disseminating news related to the requests.  Indeed, the history of waivers is one the bends toward a broad view on interpreting who qualifies as a representative of the news media.

DoJ divisions, as well as other government agencies, should begin to grant fee waivers consistent with the intent of Congress.  If they do not, they are essentially gutting a valuable provision of the FOIA that is aimed at making more information about the government available to the new breed of journalists to share with citizens around the country.

The First Amendment on the wall of the Newseum in Washington, D.C.  flickr/baekken

by Matthew L. Schafer

Understandably, most people are not acquainted with ins and outs of our legal system except for the most basic concepts.  For that reason, legal reporting, like other types of specialized reporting, must be undertaken carefully with an eye toward informing readers as to the facts and context, but, at the same time, not bogging readers down with unnecessary minutiae.  Unfortunately, and all too often, reporters fail at this task.

“Legal journalism is foundering,” the American Bar Association wrote in the late 1990′s.  “And the consequences are worse for the legal profession than for journalism.”

The ABA is not alone in its assessment of the state of legal journalism.  Others, from lawyers to judges to interested parties, often complain that legal journalists are under-informed or focus too much on the horse race of a trial without explaining to the audience the process itself.

David Shaw, a former giant at the Los Angeles Times, who was often critical of the media, once said that legal reporters often “make serious mistakes, miss good stories, overlook important legal issues, misinterpret major court decisions and fail to follow up their stories.”

Misstatements by journalists can be especially dangerous in today’s media environment.  Often news outlets – stressed for resources – will simply rewrite another news outlet’s story that contained a factual error.  In this environment, factual errors can spread like wildfire.

One recent example is especially telling: Recently, the Fourth Circuit Court of Appeals affirmed a district court judge’s decision to deny a motion to dismiss as to a man’s First Amendment claim.

The motion to dismiss came in a case where a man, shortly before entering a body scanner at an airport, removed his sweatpants (revealing gym shorts) and his t-shirt to reveal the Fourth Amendment written on his chest.  The man believed the scanners violated his constitutional rights.  Because of his actions, he was detained and later arrested.  In his lawsuit, the man requested $250,000 in damages from TSA agents and airport police officers, among others, for his detention and subsequent arrest.

The district court dismissed all claims at issue (originally the man claimed a violation of the First, Fourth, and Fourteenth Amendments) against the police officers and two other federal defendants, but refused to dismiss the First Amendment claims against the TSA agents.

The remaining federal defendants appealed the decision that could have potentially kept them on the hook for damages, arguing that the lower court erred because, among other things, “Mr. Tobey did not allege a facially valid First Amendment claim . . . .”

In rejecting the federal defendants’ appeal, the Fourth Circuit explained, “While the sensitive nature of airport security weighs heavily on the Court, protest against governmental policies goes directly to the heart of the First Amendment.”

The coverage of this case has been relatively light.  Only a dozen or so outlets wrote a story about it.  Unfortunately, some of the outlets that covered the case got the story wrong – or at the very least misled readers.

Wired reporter David Kravets was one of the first reporters to cover the Court’s decision.  He titled his article, “Man With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”

The problem with this headline is this: no trial has been held yet so the man cannot have won his trial.

The problem with this headline is this: no trial has been held yet so the man cannot have won his trial.  As mentioned above, the case was before the Fourth Circuit on a motion to dismiss.  A motion to dismiss is, by definition, a pre-trial motion.  It is only after a motion to dismiss, in most cases, that a case will proceed to trial.

Despite this, Kravets begins his article writing, “A Virginia man who wrote an abbreviated version of the Fourth Amendment on his body and stripped to his shorts at an airport security screening area won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”

Of course, this language would lead most readers to believe that this Virginia man is $250,000 richer.  He is not though – at least, not yet.

A few things could actually happen now.  The government could ask for a rehearing in front of the entire Fourth Circuit or the Fourth Circuit could order one.  These are, however, uncommon.  More likely, the case could go back to trial court for discovery and a motion for summary judgment.  Only after surviving this likely motion from TSA agents will the case continue to trial.

In Kravets’ defense, he would later go on to write that the case would be “sen[t] . . . to trial, unless there’s a settlement.”  This important information, however, is found four paragraphs into the story and only after the misleading information.

The other news outlets that covered the story after Kravets’ article illustrate how easily journalists can spread errors and misinformation through linking back to an original story with an error like the one in Kravets’ article.

For example, one outlet, which cited to the Kravets’ Wired article, explained in its own article that “[a] Virginia man won a trial Friday in his lawsuit seeking $250,000 in damages for being detained on a disorderly conduct charge.”

Another, also citing Kravets’ article, titled its article, “TSA Protester With 4th Amendment Written on Chest Wins Trial Over Airport Arrest.”

And yet another citing Kravets explained, “Man Detained by TSA for Having 4th Amendment Written on Naked Chest Wins Case.”

All of these sentences leave the impression that the man has actually won his case.  Of course, he has not.  They are plainly inaccurate.

As the Fourth Circuit said, “The question of whether Mr. Tobey’s conduct was so ‘bizarre’ and ‘disruptive’ that Appellants’ reaction was reasonable or whether Mr. Tobey was targeted because of the words on his chest cannot be decided [on a motion to dismiss].”  The Court would  go on to suggest the the federal defendants could raise alternative arguments further down the procedural road or challenge the man’s view of the facts.

Luckily other news outlets fared better.  An Australian news outlet explained, “A PASSENGER who was arrested after partially undressing as part of an airport protest is a step closer to winning a $250,000 lawsuit over the incident.”  (This article did make a mistake, however, suggesting that the lower court had dismissed all of the man’s claims.)

Words mean something and failing to use the right words in the right places can leave readers with the wrong idea.

A different news outlet said it this way: “Airport Protest, First Amendment Lawsuit Moves Forward.”  This article does not appear to have cited Kravets Wired article either.

Finally, Business Insider, which cited Kravets, was nonetheless more clear about the proceeding.  It did not say that the man won his lawsuit.  Instead, the headline read: “Guy’s Fight With The TSA Over ‘Magic-Marker Protest’ Will Likely Go To Trial.”

The author of this article contacted Kravets about correcting his error.  I wrote, in part, “Just because the appellants lost their motion [to dismiss] does not mean that the arrested man won his trial.  They will still have to go through discovery, a motion for summary judgment, and only then to trial. . . . Just thought you may want to add this clarification.”

Kravets refused to make the correction.  In a short email, he instead argued that his article was accurate.  If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.

Kravets refused to make the correction.  In a short email, he instead argued that his article was accurate.  If something can be both accurate and misleading then perhaps Kravets is right, but this is not the case.

As explained, even though Kravets’ article goes on to clarify one potential result of the decision, his headline and his lede are both inaccurate and deceptive.  This is especially the case when readers only read the title of an article or the first few paragraphs, which tends to happen.  As one report found, “A full 44 percent of visitors to Google News scan headlines without accessing newspapers’ individual sites.”  (Wired is available via Google News.)

There should be little excuse for refusing to correct such a glaring error.  Frankly, it is irresponsible.  Now, because Kravets has refused, both readers and other reporters will continue to fall victim to inartful and inaccurate reporting.  Hopefully, Wired corrects the misleading headline and lede before more readers and journalists are led to believe that this man won his trial.

Legal reporting is tricky business.  It takes time and an understanding of the legal system.  It requires reporters to make judgment calls about how much information is too much information.  More to the point, it demands that reporters use the right words.  Words mean something and failing to use the right words in the right places can leave readers with the wrong idea.  Unfortunately, the wrong judgment calls were made in this case.

Edited for typographical errors at 7:40 PM, 1/30/2013 and for a more serious omission at 12:35 AM, 1/31/2013, where the article originally omitted the “court” from the following sentence: “More likely, the case could go back to trial court for discovery and a motion for summary judgment.”  As always, I regret these errors and omissions.

President Obama’s Administration has prosecuted more government whistleblowers than all other presidents combined and has subpoenaed nearly as many journalists as President Bush did during his first term.  Some also suggest that agencies under Obama have released fewer government documents than Bush’s Administration did.  In light of these precedents, President Obama’s open government supporters have recasted their roles as adversarial ones.

“I’ll make our government open and transparent, so that anyone can ensure that our business is the people’s business,” Obama said on September 22, 2008 during the 2008 campaign.  “No more secrecy.”

Obama seemingly kept this promise.  Shortly after being sworn in in 2009, Obama signed two executive orders aimed at increasing government transparency.  One order was issued to emphasize that requests for information about executive agencies’ activities should be met with a presumption that the information ought to be released.  Another was issued to limit former presidents’ ability to invoke executive privileges.

At the time, the Sunlight Foundation, a non-profit dedicated to an open and transparent government, called the signings “extremely heartening.”

“While we don’t know yet if he will be signing any [more] executive orders, rest assured that if he does, none of them will be about making government more open and less corrupt,” the Sunlight Foundation said today.

The Sunlight Foundation is not the only transparency advocate that has criticized the Obama Administration’s approach to openness in government.  In the context of prosecuting whistleblowers for disclosing classified information, the National Press Club called the Administration’s approach a “war on leaks.”  Mother Jones, a liberal publication, said Obama was waging war against whistleblowers.  And, POLITICO explained that the Obama Administration “unleashed an unprecedented wave of prosecutions over leaks.”

However the Administration’s approach to maintaining secrecy is styled, it is clear that it has embraced the Espionage Act to punish whistleblowers more than other administrations.  The Act is a hundred-year-old law passed during World War I that allows the federal government to prosecute anyone who divulges classified information under certain circumstances.  Originally, it carried the Orwellian title the Defense of Secrets Act.

Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act. Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917.

Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act.  Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917.  While some of the seven whistleblowers charged are no longer being prosecuted, others have been sentenced to years in prison.

Among those charged is John Kiriakou, a CIA analyst, who detailed the CIA’s use of waterboarding against suspected terrorists.  The criminal complaint against Kiriakou argued that he unlawfully disclosed information about the “Central Intelligence Agency’s Rendition, Detention, and Interrogation Program.”

On August 6, 2012, the Obama Administration filed a criminal complaint against James F. Hitselberger, a contract translator who allegedly disclosed secret documents to the Hoover Institution at Stanford University.  This comes despite the government conceding that Hitselberger “has no history of violence and did not disseminate the classified information to a ‘foreign power.’”

The Fourth Circuit is currently considering another Espionage Act case.  In that case, Jeffrey Sterling, a former CIA analyst, allegedly leaked documents to James Risen, a New York Times reporter.  The information leaked detailed a botched U.S. attempt to sabotage Iranian nuclear operations.  The Fourth Circuit will decide whether the government can force Risen to name his source at trial.

It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all. If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark.

Risen is not alone.  Under the Obama Administration, several journalists have been subpoenaed.  These subpoenas either ask for unpublished notes from journalists or the names of journalists’ sources.  While it is impossible to tell exactly how many subpoenas are issued against journalists, the numbers appear to be on the rise.

At the federal level, all subpoenas against journalists must be approved by the Attorney General, according to Department of Justice regulations.  Under those regulations, the government must first make “[a]ll reasonable attempts . . . to obtain information from alternative sources before considering issuing a subpoena to a member of the news media.”

Lippmann Would Roll recently requested information from the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General regarding the number of subpoenas made under the regulation.  According to the Department’s response to LWR’s Freedom of Information Act (“FOIA”) request, the Department of Justice  considered 54 subpoena requests and approved 43 in the past eleven years.

According to the Department, subpoenas against the media were sought for cases relating to “murder, terrorism, trafficking in narcotics, bribery, leaks of sensitive information, public corruption, insider trading, gang activity, jury tampering, bomb threats and other serious crimes.”

Under a request to the Criminal Division of the Department, the Reporters Committee for Freedom of the Press discovered that 89 subpoenas were approved by the Attorney General for use by the Criminal Division over a similar time span.

The disparity between the two FOIA requests is most likely attributed to “the Offices of the Attorney General, Deputy Attorney General and Associate Attorney General . . . not maintain[ing] all media subpoena files.”  As such, more subpoenas may be on file with the Criminal Division, Civil Rights Division, National Security Division, the Tax Division, or any other division of the Department.

Unfortunately, the Department invoked three exemptions to FOIA in responding to LWR’s request, which allowed it to deny releasing the 382 documents it had relating to the enforcement of the Department’s regulation relating to subpoenaing journalists.  Appealing these types of denials to a FOIA request is very difficult.

The total denial of this FOIA request may evidence the Obama Administration’s approach to FOIA requests in general – deny them.  This, of course, runs counter to the presumption of disclosure under FOIA, which was emphasized in Obama’s first executive order.  Anecdotal evidence aside, however, it is still unclear whether the Administration is statistically less likely to release documents than other administrations.

In 2012, for example, the Department of Justice under Obama either fully or partial granted 49% of the FOIA requests it received.  At the same point in 2004, the Bush Administration fully or partially granted 56% of the FOIA requests made to the Department.  In 2010 and 2011, the Department complied with more than 55% of requests either in whole or in part.

It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all.  If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark.  Looking at the Administration’s record thus far in the cases of prosecuting whistleblowers, subpoenaing journalists, and granting FOIA requests there is little reason to expect increased transparency in Obama’s second term.

Harry Wellington, the late Dean of Yale Law School, once hedged one of his articles on the First Amendment by writing, “Those to whom nothing which I am about to say will be new may I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.”

That was over thirty years ago.  If authors had spilled too much ink as of 1979, they have most surely spilled too much as of 2012.  Indeed, First Amendment law remains a topic of interest in and outside academia.

What if that ink was wiped clean though?  How would the First Amendment’s admonition that “Congress shall make no law . . . abridging the freedom of speech” be interpreted?  That’s what this article examines.  It reviews and discards popular First Amendment theory, argues that all speech should be treated equal, and advocates for a Free Speech Clause defined by independence from government interference.

An Eye toward a Uniform First Amendment Doctrine

In academia, the majority of pages devoted to the First Amendment are dedicated to searching for a general theory of the First Amendment.  This quest has been undertaken largely in vain.

Certainly, this literature has not distilled a general theory of the First Amendment.  Instead, First Amendment theory is largely splintered into three or four “good ideas” that seem to explain why some speech is protected and why other speech is not protected.

If authors had spilled too much ink as of 1979, they have most surely spilled too much as of 2012.  Indeed, First Amendment law remains a topic of interest in and outside academia.

First, advocates and academics often invoke the self-realization or liberty theory.  This theory suggests that speech is valuable in and of itself, because it leads to “self-fulfillment and participation in change.”  Professor Baker, the main proponent of this view, said, “The method for determining the scope of protection proceeds, first, by determining the purposes or values [i.e., self-fulfillment] served by protected speech.”  Therefore, only speech related to self-fulfillment is protected.

Because Professor Baker’s theory focuses on personal self-realization through speech as a value, it does not protect corporate, commercial speech.  That speech, unlike the speech of individuals, is not intended to lead to self-realization through “value choice[s],” but to respond to market pressures in order to increase profits, and was thus left unprotected.  For the same reason, Baker’s liberty theory does not extend to commercial journalism outlets, like the New York Times.

Others advocate a marketplace of ideas theory, which is based on the idea that truth will win out in against falsehood or at the very least put up a good fight.  This theory borrows from the laissez faire view of the market economy where the government takes a hands off approach to regulating the market.

Justice Holmes famously transplanted the marketplace of ideas theory into American jurisprudence in the early half of the Twentieth Century:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

The marketplace of ideas theory presumably does not cover – at least not convincingly – speech that is never injected into the marketplace, false speech, or purely expressive speech like art.  As one scholar quipped, “[I]f we were concerned about actually increasing knowledge and exposing error, it is far from clear that we would so easily protect both communication that is largely emotive and communication that is demonstrably factually false.”

The self-governance theory is generally accepted as well.  Alexander Meiklejohn described the theory in great detail in a seminal piece, arguing, “[The First Amendment] is a device for the sharing of whatever truth has been won.  Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems which the citizens of a self-governing society must deal.”

This theory, however, has its own problems as well.  If invoked without reference to any other theory, it would protect only political speech relating to self-governance.  This itself raises question.  How should political speech contributing to self-governance be defined on the margins?  Do protestors at a fallen soldier’s funeral contribute to self-governance?  Does vitriolic, white supremacist speech contribute to self-governance?

Finally, Professor Blasi, in the late 1970s, offered a refined, narrower version of the self-governance theory intended to adapt to the social and political context of modern America by arguing that a professional, institutional press is the only way to counterbalance the growing administrative state.  This theory views the press as a fourth estate, where the press is meant to investigate “the particular problem of misconduct by government officials.”

Blasi’s theory suffers from the same definitional problem as Meiklejohn’s, but to a lesser degree.  The checking value would only apply to that speech targeted at government malfeasance, which could still be difficult to define, but perhaps less so than political speech, because it government malfeasance is not as elastic as political speech generally.

When All Speech Is Not Created Equal

While each of these theories alone is attractive to some degree, they each obviously have their own set backs, because each defines protected speech in relation to the goal of the underlying theory or the underlying values of each theory – whether that value be: self-realization, the search for truth, self-governance, or the press and public as a watchdog.

Under the self-government theory, for example, political speech is central to the meaning of the First Amendment.  Under the checking value, speech relating to government misfits is placed on the highest pedestal of protection.  As to the marketplace of ideas theory, private speech – speech that a speaker never intends to enter the marketplace – should also receive less protection, nor would it protect coercive speech that would impede the work of the speech market’s invisible hand.

In general then, these theories all view some speech – implicitly or explicitly – as more deserving of protection than other speech.  Speech that serves the underlying purpose of each theory is protected almost absolutely, but speech that only tangentially advances the underlying purpose is – or, at least, logically – should be protected to a lesser degree, if at all.

While focusing the First Amendment’s protections on specific categories of “important” speech is not a radical idea, it may be the wrong place to start and it may create difficulties of defining the outer boundaries of categories of speech that are more important than others.

While focusing the First Amendment’s protections on specific categories of “important” speech is not a radical idea, it may be the wrong place to start and it may create difficulties of defining the outer boundaries of categories of speech that are more important than others.  Indeed, it is near impossible to define what speech each theory is meant to protect and to what degree.  Some of the Supreme Court’s jurisprudence shows just how difficult it is to stake out the outer boundaries of categories of speech.

In the field of unprotected obscenity, for example, the Court has never been able to nail down what kind of speech is obscene (and, therefore, underserving of protection) and what speech is sexual, but not obscene (and, thus, deserving of protection).  Is showing intercourse obscene, but foreplay not?  Is speech that could be considered obscene in one community only explicit in another?  There are no good answers.

“[N]ot even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of ‘obscenity’ as that term is confused by the Court today,” Justice Black once wrote.

More famously, Justice Stewart once defined obscenity in a horribly unhelpful, idiosyncratic way: “I know it when I see it.”

Similarly, courts are increasingly unwilling to label speech “fighting words,” an unprotected category of speech, even if the speech could arguably fall within a broad reading of “fighting words.”  As one commentator has recently noted, “[T]he category of fighting words has rarely been litigated and the Court has never upheld a subsequent conviction under the fighting words theory, even when presented with strikingly similar facts.”

Arguably, this definitional problem has led the Court to overprotect speech that perhaps should be denied First Amendment protection under the Court’s current jurisprudence.  There is certainly some evidence that this conservative error may be caused by the Court’s uncertainty as to its ability to define categories of speech.

When All Speech Is Created Equal

What if different categories of speech were not protected in relation to whether they advance a theory’s underlying principle and were instead protected simply because all categories of speech are speech?  What if all speech was presumed to be equal?  What if all speech was presumed to be protected by the First Amendment?

At first blush, protecting all speech equally at the outset makes sense, because the First Amendment itself does not distinguish between different types of speech.  It does not say that “Congress shall make no law . . . abridging freedom of political speech.”  Nor does it say “Congress shall make no law . . . abridging freedom of sexual speech.”  Nor does it say, “Congress shall make no law . . . abridging freedom of commercial speech.”  It touches on “speech” generally.

To be completely honest, there is very limited support in the Supreme Court’s First Amendment jurisprudence for the conclusion that all speech should be treated equally.  One scholar, for example, has explained, “It is surprisingly clear that all forms of speech are not created equal.”

He is largely right.  As alluded to above, (since the Supreme Court’s decision in Chaplinsky v. New Hampshire,) the Court has adopted the idea that some forms of speech are less important than others – and, therefore, deserve a lesser amount of protection:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.  These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Setting aside the Chaplinksy categories of speech, the Supreme Court has even recognized that types of speech that are not foreclosed from protection under Chaplinksy may be more or less important than other types of speech that also are not foreclosed from protection.  Currently then, some categories of speech are not protected by the First Amendment at all and some other categories of speech only merit some First Amendment protection.

For example, the Court has noted time and again that political speech is more important than other types of protected speech.  On the other hand, the Court has held that commercial speech is not as deserving of protection as other types of speech.

These precedents are not a reason to abandon altogether the suggestion that all speech is equal and, therefore, deserving of the same amount of protection.  The point urged here is not that the legal status quo supports the idea that all speech is equal, but rather that in spite of the status quo all speech should be presumed equal.

If some precedential support is required though, there are glimmers that the Court has questioned its discriminatory approach to certain types of speech.  Indeed, while the Court has traditionally placed political speech at the center of the First Amendment, it has nonetheless acknowledged that such speech is not the only type of speech that may lie at the center of the Amendment.

[T]here are glimmers that the Court has questioned its discriminatory approach to certain types of speech.

In a case regarding whether pharmacists could be prohibited from advertising the price of drugs, the Supreme Court confessed, “[T]he particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”

The Court has also rejected the idea that the gravamen of the political controversy should determine the amount of protection that it receives.  In a case discussing the broadcasting of an illegally intercepted phone call discussing a school board, the Court wrote, “[The] debate [over teachers' salaries] may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, . . . but it is no less worthy of constitutional protection.”

In yet another context, the Court has explained that “[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.”

As the Second Circuit succinctly summed up, “Even dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection.”

The First Amendment as a Wall around Speech: Toward an Independence View

Even if the idea of presuming that all speech is protected by the First Amendment, it is still necessary to lay down a general principle that dictates how far that protection extends.  Indeed, presumptively protecting all speech does not mean that all speech must always be protected.

This must be the case, because a completely hands-off approach is simply unsupportable.  Indeed, numerous scholars have roundly rejected the idea that “make no law” actually means “make no law.”  Robert Bork, famous for his “ink blot” comment in his failed confirmation hearing to be a justice on the Supreme Court, once grumbled, “Any [absolutist] reading is, of course, impossible.”

In addition to academics, the Supreme Court has also rejected an absolutist view of the First Amendment.  As Justice Blackmun noted in the Pentagon Papers Case, where an angry Nixon administration attempted to prevent the New York Times and the Washington Post from printing a report on Vietnam, “First Amendment absolutism has never commanded a majority of this Court.”

In the absence of an absolutist view or an existing First Amendment theory, how should the First Amendment’s scope of protection be defined?  Ironically, the answer can be found in the theories just rejected.  The answer is the common denominator of each theory: independence from government.

If the government could restrain the press from publishing, for example, a watchdog press under Blasi’s checking value or under the self-governance theory could not hold government officials accountable.  If the government corrupted the marketplace of ideas, the truth-seeking function of the market could not operate effectively.  If the government was able to dictate what was morally objectionable and what was not, individuals under the liberty model could not gain self-realization.

To be clear, independence is not the purpose of each theory, but rather a necessary preterit for each to work.  This observation should be unsurprising, as the First Amendment specifically contemplates that government shall make no law abridging the freedom of speech.  As far as speech goes then, the government must, in modern parlance, stay off the free speech lawn.

Under this [independence] view, freedom of speech under the First Amendment simply means  that the right to speak should be independent from any governmental action.

The guiding principle – the same one underlying all of the widely accepted First Amendment theories – should be the guiding First Amendment principle and to avoid the definitional problems of traditional First Amendment theory, it should be untethered from the value based purposes of those theories. Once untethered, under this view, freedom of speech simply means that the right to speak should be independent from any government interference.

Because this view of the First Amendment’s protections is a content neutral one, the protections justified by this view and the extent of those protections must also be content neutral.  Luckily, several Justices, in other circumstances, have already explained how such content neutral protection would operate as a guide in the real world.

In Employment Division v. Smith, a religious freedom case, Justice O’Connor wrote an opinion concurring in judgment, which was joined by Justices Brennan, Marshall, and Blackmun (in part).  The issue there was whether two men could constitutionally be denied unemployment benefits on the basis that they smoked peyote – an act that was a violation of the law, but required by their religious beliefs.

Justice O’Connor began by explaining that “the ‘free exercise’ of religion often, if not invariably, requires the performance of (or abstention from) certain acts.”  These Justices were unwilling to distinguish between different types of religious speech and conduct.  And, they were unwilling to distinguish between different types of religions so long as each was “sincere.”  Thus, because both the belief and conduct at issue in Smith were sincere, these Justice thought that the act of smoking peyote must be presumed to be protected.

Presuming the religious act at issue was protected, Justice O’Connor nevertheless acknowledged, as it has been acknowledged here, that the First Amendment’s protections in the case were not absolute.  Instead, Justice O’Connor would have determined whether the government’s actions in denying unemployment benefits were constitutional “by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.”  As Justice O’Connor explained:

The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interests “of the highest order.”

Thus, once a citizen shows that their First Amendment rights, like the right to freedom of speech, are interfered with by the government – in violation of the independence principle – the government should show that such interference is justified by a compelling government interest and that the interference is the minimal amount necessary to advance the interest.

Simply, this test “reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.”

Essentially, under this approach, if transplanted into the First Amendment context, courts should consider the government’s interest and the means the government uses to achieve those interests, while at the same time seeking to protect all speech “to the fullest extent possible.”

Essentially, under this approach, if transplanted into the First Amendment context, courts should consider the government’s interest and the means the government uses to achieve those interests, while at the same time seeking to protect all speech “to the fullest extent possible.”

Notably, consistent with the independence view of the First Amendment, this approach would not, at all, take into consideration the value of speech or the type of speech – just as in the religion context, it does not depend on the value of the activity or the kind of religion at issue.

As Justice O’Connor explained in Smith, “Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court that because ‘it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,’ our determination of the constitutionality of [the law here] cannot, and should not, turn on the centrality of the particular religious practice at issue.”

In sum, under the independence view, all speech would be created equal and presumptively protected.  The government must, as a general rule, stay out of the business of regulating or interfering with speech.  If the government chose to do violate the independence principle, however, this violation would, in all circumstances, have to be supported by a compelling government interest that is also narrowly tailored.

The main argument against this approach is likely that it leaves courts to make case-by-case determinations without any guiding values like those ensconced in the self-governance theory, for example.  The lack of these values, it could be argued, will make it impossible to know how a court will come out in any given case.

This criticism has been put forward in another context as well.  The response to it there is the same here.  “Ask yourself whether [this proposed test] is any more [indeterminate] than the tests which the Court has evolved to meet other hard situations.”

Others might argue that the lack of principles will allow courts to undervalue speech, where it would otherwise be protected.  This seems unlikely.  Courts have traditionally protected speech quite extensively – and are, in many circumstances, doubtful of the governments bona fides when it tries to suppress or influence private parties’ speech.  Moreover, the compelling interest test puts in place one of the highest bars of judicial scrutiny.  It is unlikely that the government will often be able to justify a restriction on speech.

In fact, this view would likely protect more speech than others.  This must be the case, because under the status quo, courts often suggest that a government regulation is valid, because the speech it infringes is relatively valueless, like pornography for example.  For example, a sex tape may not be protected First Amendment speech, because a court finds it both invaluable insofar as speech goes and the government has some kind of interest in shielding the community from its own prurient interests.  If, however, the Court was required to ignore the value of the speech at issue and focus only on the government’s interest, it is likely that the speech would be protected.

Finally, it might also be argued that the independence view does not give courts any guidance in close cases that lie on the margins.  As shown, however, neither do any existing theories.  At the very least, the independence view is more honest about the judgment calls courts have to make in close cases by not suggesting, sometimes falsely, that the result reached is required by some content-based First Amendment theory.

A Clean Slate Moving Forward

The government must practice independence from all speech.  If it acts on speech, it must justify those actions with a compelling interest further by its narrowly tailored actions.  A court, thereafter, must assess the offered government interest without reference to the type of speech at issue.  It must, for example, analyze a speech restriction targeted at political speech and one targeted at fighting words without reference to the content of the speech.

It may seem odd to ignore the value of the speech at issue.  This realization is less odd when one looks at the First Amendment’s content neutral admonition against government interference.  Indeed, a content-neutral approach to the First Amendment is truer to the words of the First Amendment than an approach that includes the value of the speech in a courts calculus.

It is, of course, unlikely that the analysis set forth above will ever be adopted by a court.  Nonetheless, the analysis here is an attractive one, because it removes courts from the messy business of judging some speech as more important than other speech.  Moreover, it would bring clarity to an area of law that is replete with different tests that are to be applied in different circumstances.

First Amendment theory is inadequate, confused, and plainly contradictory.  More to the point, its filled with after-the-fact justifications that have little to do with the words of the Amendment itself.  The independence view of the First Amendment attempts to remedy this.  Or, at the very least, move the conversation out of the theoretical quagmire its currently in.

Yesterday, Google released its transparency report for the first half of 2012.  The report, which Google releases on a biannual basis, tracks user traffic to Google sites around the world, intellectual property takedown requests, government takedown requests, and government requests for user information, among other things.

The most notably takeaway from the most recent report?  Governments are getting greedy.

Since Google started releasing its transparency reports in 2009, government requests for user information have been on the rise.  In the last half of 2009, governments around the world made about 12,500 requests of Google to turn over its users’ information.  In 2010,  governments made about 28,000 requests for information.  And, in 2011, governments asked Google for information on 34,000 separate occasions.

In the first half of 2012, the numbers are still growing growing.  Indeed, in the first half of the year, governments requested more information on users than ever before: Google received over 20,000 requests.

“This is the sixth time we’ve released this data, and one trend has become clear: Government surveillance is on the rise,” Google reported.  ”In the first half of 2012, there were 20,938 inquiries from government entities around the world.  Those requests were for information about 34,614 accounts.”

Compared to other countries, the United States outdid itself in the first-half of 2012, racking up nearly 8,000 requests for information on Google users.  That’s up from 3,500 requests in late 2009, and, most recently, 6,300 requests in the last half of 2011.

India requested the most information next to the United States, but its requests barely broke the low 2,000s.  Next to the United States and India, other frequent requesters included Brazil, United Kingdom, and Germany.

Google from time to time does refuse to comply with government requests for information.  Nonetheless, it complies with the vast majority of requests from the United States (90%) and the Japan (86%).  But, it is especially less acquiescent to other countries: United Kingdom (64%); France (42%), and Germany (39%).

The United States is also leading the pack in the number of removal requests it makes each year.  In the first part of 2012, the United States requested Google remove content on some 200 different occasions.  The reasons for the removals vary:

Governments ask companies to remove content for many different reasons.  For example, some content removals are requested due to allegations of defamation, while others are due to allegations that the content violates local laws prohibiting hate speech or pornography.

Notably, the more the United States requests takedowns, the less likely Google will comply.  In late 2009, for example, the United States submitted takedown requests 123 times.  Google complied with 80% of those requests.  As of 2012, however, the United States made over 200 requests, but Google only complied with 46% of those requests.

That decreasing compliance rate is evidenced in anecdotal data as well.  ”We received five requests and one court order to remove seven YouTube videos for criticizing local and state government agencies, law enforcement or public officials,” Google reported.  ”We did not remove content in response to these requests.”

On Tuesday, the D.C. Open Government Coalition filed a complaint against the D.C. Council, asking a local judge to order the Council to search for government emails in Councilmembers’ personal email accounts.  In its complaint, the Coalition alleged that the Council violated the District’s Freedom of Information Act by refusing to release the emails.

Under the Freedom of Information Act, it is the policy of the District that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”  To fulfill this policy goal, the Act confers a right on all citizens “to inspect, and at his or her discretion, to copy any public record of a public body . . . in accordance with reasonable rules that shall be issued by a public body . . . .”

In March, the Coalition exercised that right and requested from the Council “any and all e-mails sent or received by Councilmembers by means of non-governmental e-mail accounts, during a defined, 60-day period, in the course of Councilmembers’ transaction of public business – i.e., ‘in his or her role as a public official.’”

The Coalition filed the request after the Washington Post reported that the District’s Chief Financial Officer admitted that “[t]here may have been an issue that we wanted to discuss, but did not necessarily want it to be FOIA-able to the press and, so we would have perhaps had a conversation on personal e-mail.”  Similarly, his chief of staff noted that “she used her personal account to keep messages between her and [the CFO] confidential.”  Both admissions were made in a separate lawsuit for wrongful termination.

The Coalition also cited another Post article in its complaint as impetus for the request.  That article asserted that “the use of private e-mail is so widespread as to be essentially a shadow level of government.”  It went on to explain, “Some council staff and members admit to the practice, though they say their reasons have more to do with convenience than an effort to be secretive.”

In responding to the Coalition’s records request, the Council conceded that the emails sought were likely public records.  It nonetheless denied the request, “because the Council does not possess or control the records in question, the Council is under no legal obligation to produce them.”  Simply, the Council took the position that it must have possession of documents in order for the documents to be subject to FOIA.  Because, the argument goes, only the individual Councilmembers have access to the emails in their own personal accounts, the Council does not have actual possession of the emails.

At bottom then, the Council’s position is this:  If a councilmember placed a public record in her locked briefcase, the Council is under no obligation to disclose that record to the public upon request, because it does not know the code to unlock the briefcase and, therefore, is not in control of the document.  (The complaint recognized a slightly different analogy.)  If, however, that document sat on a shelf in the Council’s office building, the Council would presumably admit that it must disclose the document.

In an attempt to avoid a lawsuit, the Coalition sent a letter to the Council in August urging it to reconsider its position.  In the letter, the Coalition argued, “It . . . defies common sense to suggest that the Council has no control over, or actual or constructive possession of, records that are literally at the fingertips of its members, retrievable with the kind of modest cooperation that a public body may reasonably expect of its employees when conducting a diligent search for records responsive to a FOIA request.”  Despite the Coalition’s concerns, the Council still refused to release the emails sought.

Maybe unsurprisingly, the Council is not the first government body to take the stance that emails contained within government officials’ personal email accounts are not subject to FOIA even if they regard public business.

Most famously, Sarah Palin’s administrative director from the time she was governor of Alaska declied to produce emails Palin sent from her Yahoo! email account, even though they concerned official business.

“We are unable to access records from the nonstate email accounts as we are not the account owner or customer of the providers,” the administrative director told reporters.

(A hacker later broke into Palin’s Yahoo! account and released several pages of the Governor’s emails.)

Just last week, the Supreme Court of Alaska finally resolved the question of whether the Palin emails should have been disclosed to records requesters.  It concluded, “In fact the State had to gather all obtainable emails from Governor Palin’s . . . private email accounts relating to the transaction of state business.”

Luckily, most states agree with the position taken by the Supreme Court of Alaska.  For example, last year, Illinois Attorney General Lisa Madigan released an opinion explaining that public bodies subject to FOIA must disclose emails concerning public business even if sent from personal email accounts.

“Whether information is a ‘public record’ [and therefore discoverable under FOIA] is not determined by where, how, or on what device that record was created; rather the question is whether that record was prepared by or used by one or more members of a public body in conducting the affairs of the government,” Madigan wrote.

Madigan’s stance is consistent with an old, oft-cited case out of Iowa where the state supreme court held, “It is the nature and purpose of the document, not the place where it is kept, which determines its status [as a public record].”

Several other states (see, for example, Texas) have taken the same stance as Madigan and the Iowa Supreme Court, as has the executive branch of the District.  Indeed, months after the Coalition made its request of the Council, District Mayor Vincent Gray issued an order to executive branch agencies to establish a “District-wide policy . . . concerning the use of private email accounts to transact public business” and “[e]nsure that all emails sent or received by District employees in which those employees are transacting public business . . . [are] available to Freedom of information Act requests.”

As part of that order, which does not extend to the Council as a legislative body, the Mayor instructed, “District employees [were] strongly discouraged from using private email accounts to transact public business and should do so only in rare instances.”

It is, of course, unclear how this case will turn out.  While it appears that the D.C. Open Government Coalition has the law on its side, nothing is ever certain in the judicial system.  If nothing else though, the ramifications of a ruling in favor of the Council would call into question the effectiveness of so many freedom of information acts around the country.

Keg stands; beer bongs; just bad judgment in general is out there for everyone to see.  Indeed, your information has found a home in the digital cloud – on Twitter and Facebook; Flickr and Youtube.  For many, that cloud, while convenient in too many ways to explain, has turned into something of an inconvenient rain cloud, following them anywhere they go.

Privacy is an old concept, but this is a new problem.  While ink used to fade from yellowing papers collecting dust in old courthouses or in the back of a forgotten desk drawer, today there is no ink – there are only the indelible 0’s and 1’s of the Internet.

This state of affairs has launched a fury of debate about whether Internet users must suffer the side effects of the downpour of private information, or whether people should be able to keep their private life, well, private.

How to confront privacy online is an especially problematic issue, because online privacy concerns reach across legal jurisdictions from London to Beijing, from New York to Buenos Aires.  This global characteristic inflames debates about Internet privacy, because not all countries agree on the extent of individual privacy and whether privacy should yield to other competing norms.

Flickr/Dave Makes

In France, for example, personal privacy is viewed as a right inherent in every person.  Privacy is a personality right, a dignity interest.  Article 8 of the French Civil Code protects this right: “[T]he court may prescribe any measures . . . appropriate to prevent or put an end to an invasion of personal privacy.”

As one of my French friends explained when I asked about France’s protective stance on privacy, “French psyche developed an absolutely boundless admiration for the Résistance [during World War II], and by extension a certain defiance to being listed in government databases, or having any kind of organisation looking into your life too closely, and an affection for the underdog in larger conflicts.”

The rest of continental Europe holds a similar stance on privacy.  Germany, for example, expansively defines privacy, “[German citizens] have the right to a private, secret, intimate sphere of life . . . , to personal honor and the rightful portrayal of one’s own person, to one’s own image and spoken word, and under certain circumstances, the right not to have statements falsely attributed to oneself.”

Article 8 of the European Convention on Human Rights reads, “Everyone has the right to respect for his private and family life, his home and his correspondence.”  Similarly, as Viviane Reding, European Commissioner for Justice, Fundamental Rights and Citizenship noted, “The protection of personal data is a fundamental right for all Europeans.”

In the United States, however, privacy is interpreted much more narrowly.  First, the right was originally tethered to property as opposed to one’s personality.  Simply, a man’s privacy existed within his castle.  Second, even if privacy extended beyond one’s castle, it nonetheless was limited by First Amendment protections for freedom of speech and of the press.

This conception was quite narrow and led Warren and Brandeis to advocate for an expansion of the privacy right: “[A privacy right should] be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds.”

Warren and Brandeis’s appeal would not fall on deaf ears.  In the last half of the twentieth century, the Court expanded the definition of privacy, defining it, in the context of searches and seizures, for example, as whether one had a reasonable expectation of privacy in the thing invaded.  Because the Court defined privacy according to the “reasonableness” of the expectation, that rule is necessarily fluid and, therefore, subject to change as society becomes used to new technologies, for example.

Thus, some technologists and tech entrepreneurs have argued that the world community should simply adapt to the era of lower expectations of privacy – Privacy Lite, in tech terminology.  As Facebook founder Mark Zuckerberg has said, “People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.  That social norm is just something that has evolved over time.”

Said another way, as United States citizens become used to posting their feelings, seeing their pictures uploaded online by friends, compiling blogs on their travels, and being recorded at a second’s notice, a reasonable expectation of privacy becomes a smaller and smaller portion of citizens’ daily lives.

Earlier this year, the European Union began to push back against this quasi-forced technological understanding of privacy by proposing a new regulation.  In this rule that would apply to all EU countries, Internet service providers would, among other things, have to give in to a user’s “right to be forgotten.”

As the European Commission describes it, under the right, “people will be able to delete their [online] data if there are no legitimate grounds for retaining it.”  At bottom, under the law, individuals could demand that websites remove any information relating to the individual.  If the website refuses, it could be subject to damages.

First off, the name alone is excellent.  At first blush, the right is attractive, especially to people who have lost their jobs as a result of a certain photograph on Facebook or suffered embarrassment from a video posted to Youtube.  Certainly, why shouldn’t someone have the right to control his or her likeness online?  Why shouldn’t someone have a right to be forgotten?  Of course, however, it is not this simple.

“At the very least, Facebook will have to engage in the kinds of difficult line-drawing exercises previously performed by courts,” Jeffrey Rosen recently wrote of the regulation.  “And the prospect of ruinous monetary sanctions for any data controller that ‘does not comply with the right to be forgotten or to erasure’—a fine up to 1,000,000 euros or up to two percent of Facebook’s annual worldwide income—could lead data controllers to opt for deletion in ambiguous cases, producing a serious chilling effect.”

As a legal matter, it is also unclear how the EU laws would be enforceable against United States companies that do not have any assets in the EU.  Frankly, no one really knows how this law or its enforcement will look in the future, and for that reason it has rightly caused alarm among many.

While any law requiring companies to erase information smacks of censorship, many would likely agree that the reason for the law – privacy – is a valid one.  As of now, it is unclear whether the EU is attempting to vindicate this right with a hammer or a scalpel though.

What is clear, however, is that people, even Americans, are becoming increasingly concerned about their online privacy (an oxymoron?).  Perhaps it is the horror stories of long ago and regrettable actions coming back to digitally haunt their actors or maybe it is simply a long last realization about how far Americans have gone in voluntarily giving up their privacy.

While the United States law surely is not as protective of privacy as privacy laws in Europe, if one takes a gander at Supreme Court privacy decisions, privacy concerns are lurking and real.

In one context, the Court explained, “the fact that ‘an event is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.’”  Perhaps most poignantly, Justice Sotomayor recently noted,

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.  This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.  People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, . . . some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not.

Privacy concerns are real and the future of privacy has yet to be mapped out with any real certainty.  Even if the EU law is not the most efficient or effective way to address these concerns or guide the development of future privacy laws and regulations, it is, at the very least, bringing privacy concerns to the forefront of the discussion.  And, if nothing else, that in and of itself is a good thing.