by Matthew L. Schafer

On January 23, 2012, the Supreme Court addressed for the first time whether the attaching of a GPS device to a citizen’s car and its subsequent use constituted a search.  The Court held that it did.

“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia stated for the Court.

Unfortunately, the media wrongly interpreted the Court’s opinion as requiring the government to seek a warrant before using a GPS device.  Indeed, as explained previously, the Fourth Amendment only protects citizen’s from unreasonable searches and seizures.  The Court never decided whether the search in this case was, in law, unreasonable.  If similar uses of GPS searches are found to be reasonable, however, then even if the search occurred, police would not need a warrant for that search.

Nonetheless, in the hours and days after the Court’s decision in Jones, many newspapers inaccurately claimed variously – exuberantly in some cases — that the “Supreme Court says police need warrant for GPS tracking.”  The Washington Post titled one of its early articles, “Supreme Court: Warrants needed in GPS tracking.”

Numerous similar examples exist:

International Business Times: GPS Tracking: Supreme Court Rules Warrant Needed, Fourth Amendment Upheld

CBS News: High court: Warrant needed for GPS tracking

Kansas City Star: Warrant needed to track suspects with GPS, justices rule

Christian Science Monitor: Unanimous Supreme Court: Get a warrant before installing GPS tracking device

Associated Press: Warrant needed for GPS tracking, high court says

NPR: Supreme Court: Warrant Needed For GPS Tracking

ABC News: GPS Tracking Requires Warrant, Supreme Court Rules

AFP: Warrant needed for GPS tracking: US Supreme Court

These headlines are just a few exemplars of how even the large, national news organizations were unable to “get the story right.”  Not only were the headlines misleading, but what is worse is the faulty explanations that accompanied the titles.

“Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required,” Jesse Holland and Pete Yost for the AP wrote.  ”All nine justices agreed that the GPS monitoring on the Jeep violated the U.S. Constitution’s Fourth Amendment’s protection against unreasonable search and seizure.”

Of course, this is exactly what the Court did not hold.  It never held that the search at issue in Jones was an “unreasonable” one.  Justice Scalia specifically passed on this issue, writing, “The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment . . . . The Government did not raise it below, and the D.C. Circuit therefore did not address it. . . . We consider the argument forfeited.”

Faulty explanations of Supreme Court holdings or misleading headlines written by news organizations like the AP are especially dangerous, because the vast majority of the public come to understand the law through the media — not the Supreme Court’s opinions.  It is the media’s responsibility to tell the people what the government is and is not allowed to do after influential Supreme Court opinions are handed down.

As one scholar stated, “Public opinion of judicial behavior and law are of vital consequence in the American legal system as a critical aspect of a polity based upon principles of popular sovereignty and limited government.”

When the press fails to accurately inform the public, public opinion about not only the Court but the law itself will naturally be misinformed.  Of course, the press in today’s media climate is, more than ever, under pressure to push out news copy at an increasingly rapid clip.  This increasing pressure is especially debilitating when it comes to covering the courts, where journalists, as lay persons, are ill-equipped to dissect a legal opinion in a few hours and then attempt to explain that opinion to yet other lay people.

Inaccurate press coverage in Jones should be a learning experience.  First, if news organizations fail to accurately explain legal opinions, those organizations should issue corrections.  In this case, few if any did.  Second, before publishing an article, journalists should consult with legal experts.  This check would help to prevent a complete misreading of judicial opinions.  If nothing else, it would give the journalist plausible deniability.

In short, journalists should be more responsible when dealing with judicial opinions.  Now, unfortunately, the vast majority of the American public likely believes that police cannot — without a warrant — install a GPS device on their vehicles.  Because it is unclear if that is actually the case, the American public is the loser as a result of this journalistic imbroglio.

by Matthew L. Schafer

On January 23, the Supreme Court released its long-awaited opinion in United States v. Jones, a case asking whether government installation and subsequent use of a GPS device on the undercarriage of a citizen’s car constituted a search.  The Court held that it did.

In Jones, a joint task force comprised of the members of the Federal Bureau of Investigation and Washington D.C.’s Metropolitan Police Department sought and received a search warrant to place a GPS device on the Jeep of Antoine Jones.  The warrant the task force received required the GPS device be installed on the car in ten days within the District of Columbia.

Officers, however, messed up.  They did not install the device within ten days — it was the eleven days.  Moreover, when the officers did install the device on the car, they did so in Maryland instead of DC.  Nonetheless, they still collected troves of information about Jones’ movement for twenty-eight days from the use of the tracking device.

In United States courts, when search warrants are not issued or officers fail to execute an issued warrant as the magistrate instructs, defendants can move to have the evidence gathered suppressed.  Simply, if officers do not follow the rules, the evidence they gather cannot be used against the defendant, because the Fourth Amendment protects citizens from “unreasonable searches and seizures.”

Jones argued just this.  He asked that the court suppress the evidence gathered as a result of the poorly executed warrant.  At trial, a federal district court ordered that any evidence gathered from the GPS device while the car was in Jones’ garage (a historically private place) must be suppressed but evidence gathered while the car was on public roads need not be suppressed.

The trial court cited a well-known Supreme Court case when it issued its order.  The Court decided the case, Knotts v. United States, in 1983, stating simply that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

At its most basic, the Court in Knotts, acknowledged that a long line of precedents beginning with Katz v. United States held that a search within the meaning of the Fourth Amendment occurs when a person has a reasonable expectation of privacy in the thing searched and that expectation is one society is willing to recognize as legitimate.  For example, a couple has a reasonable expectation of privacy in their own bedroom, and society would likely see such an expectation as legitimate.

On the other hand, because people do not have a reasonable expectation of privacy in their movements while in public (anyone can watch another in public after all), then the government could track Mr. Knotts’ movements on public roads using an antiquated beeper.

On appeal, however, the court held that Knotts did not apply to Mr. Jones, because in Knotts the Supreme Court “distinguished between the limited information discovered by use of the beeper—movements during a discrete journey—and more comprehensive or sustained monitoring of the sort at issue in this case.”

In short, the appellate court held that Jones is different from Knotts, because the officers tracked Mr. Jones a much greater amount of time.  Therefore, the court held that “the whole of a person’s movements over the course of a month is not actually exposed  to the public [and, as such, protected] because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”

At oral argument in Jones, the government relied heavily on Knotts, despite the lower court’s ruling.  Surprisingly, however, when the Supreme Court handed down its opinion last week, it did not rely on Knotts – its own case seemingly on point.  Instead, the Court, through Justice Antonin Scalia ironically revived what forty-four years of law students have been taught is for all intents and purposes dead law–eighteenth century constitutional trespass.

Justice Scalia wrote the Court's opinion in United States v. Jones. (Flickr/The Higgs Boson)

“Jones’s Fourth Amendment rights do not rise or fall with the Katz [reasonable expectation of privacy test] . . . ,” Scalia stated for the Court.  ”At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’  As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”

It now appears, then, that a citizen need not always have a reasonable expectation of privacy in a thing to argue that a search occurred.  (Or, perhaps, one could say that because property  enjoys such a wide range of protection it per se carries with it a reasonable expectation of privacy in the property.)

Notably, in Knotts and another beeper tracker case, United States v. Karo, officers hid the beepers in a container with the consent of the owner of the container.  Thereafter, the containers found their way into the suspect cars.  Therefore, those cases did not control the result in Jones, Scalia wrote, because Mr. Jones never gave officers permission to place the GPS device directly on his car in the first place.

Thus, the Court held that the installation was, in law, a search, because it amounted to a constitutional trespass of property.  What the Court did not decide, however, was whether the search was unreasonable.  Indeed, officers can still perform a search without violating the Fourth Amendment if that search is “reasonable.”  Specifically, the Fourth Amendment only protects citizens from “unreasonable searches and seizures.”  This is what caused many commentators to argue that the 9-0 decision against the government was not as unfavorable to the government as everyone thought.

Despite warnings that the decision is not as broad as many argue, it seems quite possible that it is not as narrow as others argue.  Indeed, “warrantless searches are presumptively unreasonable under the Fourth Amendment, [and] the government bears a ‘heavy burden’ of proving [an exception].”  See, e.g., United States v. McClain, 444 F.3d 556 (6th Cir. 2005).

So how does a court know when a warrantless search is reasonable?  Well, there are certain exceptions to the “warrant requirement” that the Court has carved out over the years.  Such exceptions include:  hot pursuit, a search incident to lawful arrest, plain view, plain feel, an exigent circumstance, and an automobile exception.

It isn’t necessary to explain what each exception is, it is only necessary to note that (1) many courts have never reached the question of whether attaching a GPS device to a car is unreasonable, because they applied the Katz test to the tracking and found that no search (reasonable or not) occurred in the first place under Knotts, and (2) attaching a GPS device does not fit nicely into any of the exceptions.

Of course, the “automobile exception” sounds applicable here, but it sounds applicable in name only.  The exception is of an old vintage (first enunciated in the 1925 case, Carroll v. United States) and essentially allows officers to search a car when that officer has probable cause, “because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”  At its most basic, the automobile exception is based on the idea that physical evidence will be lost to the police if society does not allow officers to search a car when they have probable cause to believe it contains evidence.

In Carroll, the search was upheld because the Court was afraid that not upholding the search would have allowed Mr. Carroll, a rum-runner, to destroy or otherwise remove the liquor bottles hidden within the seats of the car.

Here, the same logic cannot apply to GPS tracking.  Indeed, there is nothing that the officers need fear will be destroyed by requiring them to seek a warrant to install the device.  There is nothing intrinsic in the car itself that is or contains evidence.  There is nothing that will be lost to the officers necessarily; indeed, they can simply use less-invasive alternative methods (like a stake out, for example) to track the movements of a citizen.  (As the D.C. Circuit stated in Jones, quoting the Supreme Court, “The fact that equivalent information could sometimes be obtained by other [lawful] means does not make lawful the use of means that violate the Fourth Amendment.”)

Thus, it is fair to conclude that the Court’s ruling in Jones was not as broad as many suggested.  On the other hand, it was not as narrow as others seemed to suggest.  If anything the Court took the middle ground, and likely got to five votes because of it.  Nonetheless, as many have pointed out, there are still many many questions about technology and privacy that remain unanswered.

As the web goes dark, many people may be wondering why.  Of course, it is obvious now: SOPA and PIPA, the bills currently being considered by Congress that opponents say will amount to censorship online.  In order to learn more, feel free to visit the LWR links below about SOPA, PIPA, and free speech online.

Below is a list of congressmen recently changing their stance on PIPA or SOPA or announcing for the first time their opposition to the bills.  (Updated: 9:07 PM EST).  Please visit OpenCongress for a contextual list.

Sen. David Vitter [R-La.]: “I won’t be supporting the Protect IP Act (PIPA or SOPA as it’s called in the House of Representatives) because, though I’ve been pushing hard on both internet freedom and national security concerns, they still haven’t been fully addressed. It’s a real mistake to press forward with a flawed bill now.”

Sen. Olympia Snow [R-Me.]: “As Senator Snowe reviews this wide-ranging legislation she has concerns that we cannot have a federal overreach of authority that would hamper innovation or compromise the inherent openness and freedom that are part and parcel of the Internet,” an aide said.

Sen. Lisa Murkowski [R-Alaska]: “PIPA was envisioned as a way to fight intellectual property theft online, but the bill raises serious concerns about our civil liberties. That’s why next week I plan to oppose the current PIPA bill.”

Sen. James Inhoff [R-Ok.]: “While I believe that the intellectual property rights of American companies deserve substantial protection under the law, S. 968, the PROTECT-IP Act, is not the answer to the problem of online counterfeiting and piracy.”

Sen. Jim DeMint [R. SC]: “I support intellectual property rights, but I oppose SOPA & PIPA. They’re misguided bills that will cause more harm than good.”

Sen. John Boozman [R-Ark.]: “The PROTECT IP Act seeks to address an issue that is of vital importance to the future of intellectual property rights in the modern era. However, the concerns regarding the unintended consequences of this particular bill are legitimate.”

Sen. Orrin Hatch [R-Ut.]: “After listening to the concerns on both sides of the debate over the PROTECT IP Act, it is simply not ready for prime time.”

Sen. Mark Kirk [D-Il.]: “Freedom of speech is an inalienable right granted to each and every American, and the Internet has become the primary tool with which we utilize this right. . . . While we should protect American intellectual property, consumer safety and human rights, we should do so in a manner that specifically targets criminal activity.  [PIPA] stifles First Amendment rights and Internet innovation. I stand with those who stand for freedom and oppose PROTECT IP, S.968, in its current form.”

Sen. Mark Udall [D-Col.]: “[U]nfortunately, provisions in PIPA appear to create unintended consequences that could stifle U.S. innovation, limit Americans’ free speech rights, increase the risk of cyber-attacks, and undermine how the Internet functions.”

Sen. Jeff Merkley [D-Or.]: “We can’t endanger an open Internet.”

Sen. Scott Brown [R-Ma.]: “I’m going to vote NO on PIPA and SOPA.  The Internet is too important to our economy.”

Sen. Marco Rubio [R-Fl.]: “I have decided to withdraw my support for the Protect IP Act.”

Sen. John Cornyn [R-Tx.]: “Stealing content is theft, plain and simple, but concerns about the internet and free speech necessitate a more thoughtful, deliberative process.”

Sen. Roy Blunt [R-MO.]: “The right to free speech is one of the most basic foundations that makes our nation great, and I strongly oppose sanctioning Americans’ right to free speech in any medium – including over the internet.”

Rep. Adam Kinzinger [R. Il.]: “Unfortunately, the way these bills are currently written does not ensure an open and free internet and that is not something I can support.”

Rep. Ben Quayle [R-Ariz.]

Rep. Lee Terry [R-Neb.]

Sen. Tom Coburn [R-Ok.]

Sen. Jeff Sessions [R-Ala.]

Sen. Jim Risch [R-In.]

LWR Links:

It’s American Censorship Day: Why Congress Wants to Blackout the Net

Open Letter to Senator Dick Durbin

SOPA Shelved, PIPA on Its Last Leg, and the Internet Saved?

Free Speech, generally: An Imperfect Manifestation: Searching for the First Amendment on Bill of Rights Day

Other Online Resources:

Fight for the Future

Ars Technica: Protesting SOPA: How to Make Your Voice Heard

Wikipedia: SOPA and PIPA – Learn More

CBS News: SOPA, PIPA: What You Need to Know

OpenCongress – Trace the Money

No one ever said that telling the truth was easy.  As The Times’ Public Editor Arthur Brisbane recently discovered, having conversations about how to deal with the truth is even more difficult.  Brisbane, who with all good intentions, asked readers “whether and when New York Times news reporters should challenge ‘facts’ that are asserted by newsmakers they write about.”  As Brisbane later said, readers responded bluntly, “Yes, you moron, The Times should check facts and print the truth.”

It is not only readers who responded swiftly, but journalists and commentators also.   Glenn Greenwald at Salon suggested that Brisbane’s query shows that journalists “simply do not believe that reporting facts is what they should be doing.”  This overstates the case.  Simply, the question Brisbane has asked is deceptively complicated and leads only to more questions about how journalists should deal with the truth.  At some point, the newspaper industry must find a new niche and striking out on a quest for the verifiable truth might be as good a place to start as any.

Since around the 1920s, journalists trained at universities across the country haven’t actually been taught – at least not forcefully – to be fact checkers.  Instead, many universities teach young journalists to “get both sides of the story” – an approach that is emphatically not a search for truth, but rather a quest for “fairness.”  This journalistic tactic is reinforced in newsrooms across the country, giving the politically powerful on both sides of the aisle a newspaper microphone.

Additionally, journalists in newsrooms are simply not well situated to ferret out facts for practical reasons.  In today’s political media environment, deadlines are racing towards journalists faster than I care to imagine, making thorough fact checking impractical.  Journalists who do try to quickly debunk political claims also risk losing credibility if they make a factual misstep.  Without some degree of credibility, journalists’ work is discredited, and, the game is up.  As Murrow said, “To be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful.”  The nuanced question Brisbane should have asked then is “Under what conditions can reporters be fact checkers, while not risking their own credibility?”

Fact checking is a difficult proposition for anyone, because truth has gradations and not everyone agrees on where truth fades into falsity.  Just ask Bill Adair at Politifact, a project of the St. Petersberg Times devoted to fact checking, who suffered scathing outrage when Politifact chose as the “Lie of the Year” Democratic claims that Rep. Paul Ryan’s budget would “end Medicare.”  Paul Krugman, writing in The Times, wrote in response, “This is really awful. Politifact, which is supposed to police false claims in politics, has announced its Lie of the Year — and it’s a statement that happens to be true.”

Adair’s situation is informative.  Some felt that the “lie” Politifact was trying to debunk was not verifiable.  That is, it did not lend itself to a definitive judgment by a journalist as to whether it was actually true or false.  In such situations, journalists inevitably risk losing face.  Perhaps backlash of the type that Adair faced is factored into journalists’ decisions to not fact check.  (Indeed, even Greenwald, who lambasted Brisbane for, in his mind, asking whether the Times should be fact checking at all called Politifact a “scam of neutral expertise.”)

Journalists trepidation in debunking is illustrated well by Sarah Palin’s now infamous 2009 “death panel” Facebook post where she claimed that President Obama’s healthcare plan would create a “death panel” to decide who was “worthy of healthcare.”  Even though the claim was verifiable – journalists could look through the bill for themselves, after all – journalists often refused to actively debunk the claim.  Indeed, one recent study shows that in just a fifth of articles about death panels did journalists flatly label the claim false.  Oddly, in many other instances, reporters both debunked the claim and played by the rules of he said/she said reporting.  Indeed, a third of all newspaper articles relied on the he said/she said approach.

While it is cliché, journalism is in crisis, in part, because news copy is cheap (if not free) and widely available.  The Times and other newspapers then must offer readers something that other news outlets or online opinion manufacturers cannot.  In this case, that something is fact checking.  Fact checking is in many instances time and resource intensive.  Anyone can turn out a news article quoting the he said/she said between Romney and Gingrich, for example, but not everyone can devote the resources to parsing apart the candidates’ words.  Critically, unapologetically, and obviously labeling political Pinocchio’s liars should be traditional newspapers’ new niche.

This course of action will no doubt ruffle the feathers of those on the wrong side of truth, and, yes, it might also bring charges of bias.  What do newspapers really have to lose though?  Most people already believe that newspapers are biased either to the left or the right (depending on who you ask) anyway.  Moreover, most people already do not trust newspapers.  Additionally, the increasing popularity of fact checkers like FactCheck.org and Politifact shows, if nothing else, that the public wants a clear answer when such an answer exists in the first place.

If journalists do choose to change their practices and routines, it will have to be a committed change.  They must shed constraints of their traditional he said/she said approach that live within the walls of academia and newsrooms today, taking on a greater responsibility of actively searching for “the truth.”  At the same time, though, newsrooms must know that their vigilantism must be tempered by an understanding that truth is so very often elusive.

Flickr/mexicanwave

Opponents of the industry supported piracy bills SOPA and PIPA celebrated as word came from Washington that legislators have shelved SOPA.  Over the weekend the Obama administration, responding to a petition, suggested that it would not support the current legislation.

“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small,” Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, said.

Espinel added that “[Congress] must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet.”

SOPA and PIPA, which were proposed last year, have been lightening rods for controversy, even prompting an “American Censorship Day” in November.  Opponents to the bills (myself included) have argued that “SOPA [and PIPA] . . . do not protect creativity, foster inovation, promote entrepreneurship, or enstill free speech values.”

Specifically, opponents expressed concerns with the DNS blocking requirements of the bill, the legal responsibilities the bills would put on third party intermediaries like search engines, the private enforcement powers granted to corporations, and the effects the bills would have on free speech.

“While I remain concerned about . . . the Protect IP Act, I am confident that flawed legislation will not be taken up by this House,”  House Oversight and Government Reform Committee Chairman Rep. Darrell Issa [R-CA] said.  “Majority Leader Cantor has assured me that we will continue to work . . . to build consensus prior to any anti-piracy legislation coming before the House for a vote.”

While many of SOPA and PIPA’s opponents are celebrating, the EFF, a public interest group and a strong opponent of the “blacklist bills,” as it calls them, cautioned that “the fight is still far from over.”  In a statement issued on Monday, EFF noted that “the Senate is still poised to bring PIPA to the floor next week, and we can expect SOPA proponents in the House to try to revive the legislation.”

Beyond public interest groups, Silicon companies like Google, Facebook, Twitter, and Reddit have also fervently opposed the legislation.  Incumbent industry powerhouses like the Motion Picture Association of America and Viacom provided the majority of support for the bills, which also were supported by a slew of legislators.  Supporters of the bills  are arguing, as the legislation falls apart, that the industry stands to lose millions without the protection of the bills.

“As had been made clear throughout the legislative consideration of SOPA and the PROTECT-IP Act, neither of these bills implicate free expression but focus solely on illegal conduct, which is not free speech,” the MPAA said in a statement over the weekend.

News Corporation CEO Rupert Murdoch said more brashly in response to the White House’s statement, “So Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery.”

While incumbent industry leaders are disgruntled over the recent change in tides, it appears that for the time being SOPA and PIPA opponents can pat themselves on the back for, at the very least, staving off the legislation.

A pat on the back, however, does not mean that supporters will take the week off.  Reddit, which had planned a black out of its website in protest of the bills, is reportedly going forward with its planned black out despite the SOPA news.

Wikipedia will also join Reddit, posting a banner on its website on Monday that “[i]n less than 26 hours, the English Wikipedia will be blacked out globally to protest SOPA and PIPA.”

The EFF also recently outlined provisions that are likely to be reborn in future bills and that it alleges are vague, overbroad, and damaging to free speech: the Anti-Circumvention Provision, the “Vigilante” Provision, Corporate Right of Action, and Expanded Attorney General Powers.

Flickr/Stigs

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 13,000 times in 2011. If it were a concert at Sydney Opera House, it would take about 5 sold-out performances for that many people to see it.

Click here to see the complete report.

Unsurprisingly, everyone is upset with the most popular fact checker in town, PolitiFact. What they allege though is just not true, or at least mostly false. (Flickr/hebedesign)

by Matthew L. Schafer

Recently, PolitiFact, a fact checking organization within the St. Petersburg Times, has been receiving heat.  It recently gave the “Lie of the Year” award to a whole slew of Democratic claims that Rep. Paul Ryan’s budget proposal would “end medicare.”  This caused a backlash from commentators like Paul Krugman (who has fared quite well in PolitiFact rankings), Steve Benen, and Alex Pareene.

“The people at Politifact are terrified of being considered partisan if they acknowledge the clear fact that there’s a lot more lying on one side of the political divide than on the other,” Krugman argued.  ”So they’ve bent over backwards to appear ‘balanced’ — and in the process made themselves useless and irrelevant.”

Media Matters questioned PolitiFact's Lie of the Year reasoning, arguing, "In naming as its 2011 "Lie of the Year" a statement that is, at worst, arguably true, Politifact has inadvertently said more about itself and the media's failure to adequately combat the lies and deception that act as a cancer on American democracy." (Cartoon reprinted with permission/Rob Tornoe)

Pareene agreed with Krugman’s assessment that PolitiFact (or fact checking generally) is broken, stating, “fact-checking practiced under the operating rules of ‘unbiased’ ‘objective’ political journalism will sometimes just highlight the failings of ‘unbiased’ ‘objective’ political journalism.”

Specifically, Pareene argues that fact checking isn’t different from news organizations’ normal he said/she said approach, which highlights the arguments of competing sides and lets the reader decide which side makes more sense.

Frankly, Pareene, Benen, and Krugman are wrong.  First, the smell wafting off of Pareene’s article is that it is somehow disingenuous to “debunk” political exaggerations.  What Pareene doesn’t grasp is simple: If you don’t want it debunked, don’t resort to hyperbole.

“The idea is that scare-mongering is basically the same thing as deceiving, which seems to make it extremely difficult to make a forceful political argument, in cases where you believe your opponent’s policies would make things radically worse,” Pareene said.

It is as if Pareene would like to draw a line somewhere between a shadow cast by a falsehood and a shadow cast by an exaggeration.  The problem being, of course, there really isn’t a distinction between the two.

Second, some statements have strands of truth and falsity, and sometimes the falsity will be so great that it will obscure the truth.  As an exemplar, how about political cartoons?  Many are based on some amount of truth, but make their point by adding a cup of exaggeration for flavor.  Recognizing this, Politifact doesn’t have a binary scale, but rather a variety of rankings: True, Mostly True, Half True, Mostly True, Mostly False, False, and Pants on Fire.  In an effort to get it “right,” PolitiFacts has to make editorial choices.  Indeed, what’s the difference between mostly true or half true?  This, however, is exactly the risk that PolitiFact has agreed to open itself up to in order to better inform its readers.

Third, Pareene ironically relies on political insiders–the supposed problem of PolitiFact according to Pareene–to support the claim: “The press has a real and serious need for a mechanism by which it can report the unvarnished truth, which by necessity involves judgment calls and the application of critical thinking that can often look like ‘bias.’  Right now, the most prominent version of that mechanism has revealed itself to be as flawed as the rest of the political press.”

Obviously, the press needs a mechanism to report the “truth.”  That is exactly what PolitiFact is trying to do, while at the same time recognizing that fact is more elusive than Yeti.  Unlike traditional he said/she said reporting, PolitiFact sets out in search of the elusive monster, instead of leaving it up to the ill-informed reader to decide without any guidance.  (Additionally, notice that in Pareene article, as well as many others, there is no real suggestion of an alternative, what that alternative would look like, or how it would “solve” the failings of PolitiFact.)

The lesser point is political commentators attacking PolitiFact are doing exactly what their job description is: commentating, because they are either happy or unhappy with the result.  The greater point is one has to take the bitter with the sweet.  PolitiFact provides a valuable service.  If nothing else, at least PolitiFact takes the time to lay out in clear bullet points what Ryan’s plan does and offers support for those points, all the while telling us why some exaggerated claims are, in fact, wrong.  That is more than one can say for most articles about medicare.

Give PolitiFact a break.  It sure is doing the reader a lot more favors than those criticizing it.  Of course it’s not infallible, but its defendable.  Instead of PolitiFact’s tagline “sorting out the truth in politics,” maybe those critics would be happier with “trying the best we can to cut through the bullshit.”

Correction 12/21/2012: As originally published, this article erroneously attributed Alex Pareene’s commentary to similar commentary by Steve Benen.  LWR regrets the error.

by Matthew L. Schafer

Below is my letter to Senator Dick Durbin [D-IL].  Senator Durbin supports the Protect-IP Act, an act that would “break the Internet.”  You can contact your representative about the legislation here.  Before doing so, you can also view a helpful infographic.

Dear Senator Durbin,

My name is Matt Schafer and I respectfully write you today as a constituent and a content creator to urge your opposition to the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT-IP Act) (and, similarly, the House of Representatives version, the Stop Online Privacy Act (SOPA)).

According to the Congressional Research Service, the PROTECT-IP Act authorizes the Attorney General or a private party to file an in personam or in rem action against a foreign domain name of a website that is “dedicated to infringing activities.”

The Act defines an infringing website broadly as one that “has no significant use other than engaging in or facilitating copyright infringement, circumventing technology controlling access to copyrighted works, or selling or promoting counterfeit goods or services.”  This definition will lead to the censorship of non-infringing websites.[1]

A group of ninety law professors summarized the bill: “The Act would allow the government to break the Internet addressing system. . . . It requires credit card providers, advertisers, and search engines to refuse to deal with the owners of such sites. . . .  [It suppresses] speech without notice and a proper hearing. . . .  The Act represents retreat from the United States’ strong support of freedom of expression and the free exchange of information and ideas on the Internet.”[2]

This Act is another—particularly gross—example of industry skittishness over new technologies.  That skittishness is illustrated well by the Betamax case,[3] where Universal Studios, Inc. and Walt Disney Productions sued Sony out of fear that Betamax would break their businesses.

Where would recording technology be today if one more Justice sided with Justice Blackmun’s dissent, arguing to uphold the judgment against Sony?[4]  Luckily, in the copyright context of Sony Corp., the majority’s reasoning that technologies with substantial non-infringing uses do not violate the law has carried the day.[5]

Simply, PROTECT-IP and SOPA are as broken as the dissent’s logic in Betamax.  The legislation is not narrowly tailored.[6]  The legislation is vague and overbroad.[7]  Its operation outside of a true adversarial process should concern you as a member of the Senate Judiciary Committee.

Additionally, PROTECT-IP and SOPA protect large corporate interests, but do not protect creativity, foster innovation, promote entrepreneurship, or instill free speech values in the newest generation that will call the Internet home.

Despite Rep. Lamar Smith’s sideswipe at Google and its “criminal activity” in a recent hearing, the opponents of this bill are not lawbreakers–they are the new innovators.  They worry incumbents because they are motivated by a different philosophy: a philosophy of sharing, collaboration, remixing, reinventing, and otherwise working towards something “new,” something “better.”

You have said, in correspondence to other constituents, “It is important to note that this legislation seeks to address a serious problem without inappropriately restricting Internet freedom.”[8]  This is simply not the case.[9]

Indeed, these bills amount to censorship by breaking the Internet through DNS filtering.[10]  Simply, the Act will cause “catastrophic consequences for the stability and security of the DNS.   By authorizing courts to order the removal or replacement of database entries from domain name servers and domain name registries, the Act undermines the principle of domain name universality – that all domain name servers, wherever they may be located on the network, will return the same answer . . . .”[11]  When the fig leave of technology is pulled away, the brutality of this approach is apparent.[12]

This form of censorship is the very antithesis of our nation’s values.  As a nation, we must be eternally vigilant against attempts to censor—whether that censorship is aimed at literary masterpieces, personal blogs, the understood or the misunderstood.  As Justice Chief Justice Warren said,

It would seem idle to suppose that the Court today is unaware of the evils of the censor’s basic authority, of the mischief of the system against which so many great men have waged stubborn and often precarious warfare for centuries of the scheme that impedes all communication by hanging threateningly over creative thought. . . .

The censor’s function is to restrict and to restrain; his decisions are insulated from the pressures that might be brought to bear by public sentiment if the public were given an opportunity to see that which the censor has curbed.

The censor performs free from all of the procedural safeguards afforded litigants in a court of law.  The likelihood of a fair and impartial trial disappears when the censor is both prosecutor and judge.  There is a complete absence of rules of evidence; the fact is that there is usually no evidence at all . . . . How different from a judicial proceeding where a full case is presented by the litigants.  The inexistence of a jury . . . is a vital flaw.

A revelation of the extent to which censorship has recently been used in this country is indeed astonishing.[13]

PROTECT-IP and SOPA mean nothing but industry appeasement.  An appeasement that would cost me and millions of other American taxpayers “$47 million over the 2012-2016 period.”[14]  An appeasement that would squelch innovation and stifle creativity.[15]  The economic and creative costs are not worth the marginal benefit.  Please do not support this measure.

Best,

____________/s/________________

Matthew L. Schafer

An Occupy Philadelphia protester leads a chant at a recent protest. (Flickr/Craig Fineburg)

by Matthew L. Schafer

On May 29, 1787, Charles Cotesworth Pinckney, a South Carolinian who would later become the Foreign Minister to France, submitted a proposal for the organization of the soon to be formed new federal government.  In his proposal, he included a precursor of the First Amendment to the United States Constitution.

“The legislature of the United States shall pass no law on the subject of religion nor touching or abridging the liberty of the press,” he wrote.

The Constitution would eventually be ratified a year later without Pinckney’s clause protecting the freedom of speech.  Nonetheless, the Founders had struck a deal to ratify the Constitution on the condition that Congress work to pass a Bill of Rights once the Constitution was in force.

Three years later on December 15, 1791, Congress ratified the Bill of Rights.  After several revisions, Congress had included the following language for the First Amendment:

Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .

Justice Louis Brandeis would later say of the First Amendment:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Brandeis wrote those words in a 1927 concurrence in Whitney v. California, a Supreme Court case that sent Ms. Anita Whitney to jail for trying to organize the Communist Labor Party in California in 1919.

Titled "Article the Fourth" is the House of Representatives version of what would become the First Amendment (top). "Article the Third" is the modified article that would find its way into the Bill of Rights and, eventually, the Constitution as the First Amendment (bottom).

Two-hundred and twenty years after the First Amendment went into force and over 80 years after Brandeis wrote his stirring concurrence in Whitney, many would hope that First Amendment ideals are alive and well–that the ideals embodied in the First Amendment, and in the Western cannon almost 400 years ago, would have been realized.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” John Milton wrote in 1644.

Yet, that old ideal that men should have the liberty to speak freely, one pulled painfully through history by men who no doubt understood its importance to the realization of both a healthy individual and a healthy state, has not yet been fully realized.

Earlier this month, Frank La Rue, the U.N. special rapporteur for the protection of free expression, admonished the United States and local municipalities for arresting or otherwise impeding reporters covering the Occupy protests around the country.  The admonishment went uncovered by the press for all intents and purposes.

Free Press, a national, non-profit, non-partisan media reform organization, has documented 34 instances of police arresting journalists who were in the middle of covering the protests.  Major news organizations, the New York Civil Liberties Union, and the New York Press Club sent letters protesting the treatment of reporters to city officials.

“I believe in city ordinances and I believe in maintaining urban order, [b]ut on the other hand I also believe that the state — in this case the federal state — has an obligation to protect and promote human rights,” La Rue said.  ”If I were going to pit a city ordinance against human rights, I would always take human rights.”

Flickr/Walt Jabsco

Last week, Mayor of New York Michael Bloomberg said that police did not prevent anyone from reporting.  This, however, seems difficult to wash with the fact that police did arrest reporters, which likely inhibited those arrested reporters from actually reporting for some period of time.

It is not only reporter arrests that illustrate attacks on the news media, but subpoenas against journalists.  Indeed, it is one thing if a journalist “accidentally” gets swept into the fray of a protest, it is another when the government actively pursues a journalist’s notebook through orderly legal channels.

When Branzburg v. Hayes, a 1972 Supreme Court decision subject to a slew of interpretations regarding the freedom of the press to be free from government subpoenas, was handed down, the government issued few subpoenas against reporters.  Such is not the case anymore.

This week, a federal judge issued a subpoena that would require a Chicago Tribune reporter to turn over all information on a juror at issue in a high-profile case.  The Tribune fought the order, and the judge later said that the reporter need not produce her notes, finding that they would not be useful.

“From our perspective, it really doesn’t matter whether Sweeney’s notes contain anything that would help either side in this case,” the Tribune wrote after the decision.  ”Requiring reporters to do the work of the judicial system compromises the work they do for the public.  Journalists’ agenda is to collect and present facts fairly, as independent witnesses.  If attorneys and others can demand access to that material for their own purposes, then reporters can be perceived as their agents.  Sources will be reluctant to talk freely, or at all.”

While the Tribune can claim success in this instance, it is just a small step toward judicial restraint in issuing subpoenas for reporters notebooks.  This victory does not spell the end of orders against journalists, however.  In 2006 alone, over 7,000 state and federal subpoenas were issued against news organizations, a study suggested.

The subpoenas demand anything from substantive notes to confidential sources to the who, what, when, where, and why.  The topics of the subpoenas range from information about juror tampering to drugs to national security.  Essentially, everything.

National security stories especially put journalists at risk of jail time if they refuse to divulge sources.  There are success stories even in the national security realm, however.  For example, James Risen, a New York Times reporter, recently succeeded in convincing a judge not to enforce a subpoena against him in a case related to his 2006 book State of War, which details a botched CIA operation in Iran.

“A criminal trial is not a free pass for the government to rifle through a reporter’s notebook,” Judge Leona Brinkema wrote in favor of Risen.

Of course, corporate limits on speech, while not prevented by the First Amendment, which applies only to federal and state government, are also concerning.  Such limits are especially concerning when they are enforced by the government–at which point the First Amendment’s protections would kick in.

Corporate limits on speech manifested themselves during the Gulf oil spill last year when reporters were repeatedly blocked from taking photographs and reporting on the spills.  The situation was so desperate that Anderson Cooper finally exclaimed, “We are not the enemy here.”

It would be false to say that the First Amendment’s less-than-perfect current condition wasn’t the one the Founders had in mind when they ratified the Bill of Rights.  Indeed, the Founders are many of the same men who would later pass the now embarrassing Alien and Sedition Acts of 1798, which radically restricted speech and gave the Federalist goverment the power to arrest anyone, including journalists.  Nonetheless, by writing the First Amendment into a timeless document, the Founders have forever challenged America to live up to the ideal–not down to the failings of the past.

Luckily, speech does garner greater protection than it has in the past. On the whole, prior restraints preventing the press from publishing are rare and social media has reinvigorated the public sphere generally.  (Though even that is threatened.)  Moreover, alternative media–enabled by the Internet–has brought alternative views to millions.  And, for the most part, the Supreme Court has defended free speech vigorously.

That said, there is a future that imagines a greater free trade in ideas, spurred not only by the protections promised by the Bill of Rights and enforced by the judiciary, but technological advancements that make the marketplace bigger, more diverse, and vibrant.

Bill of Rights Day should be a reminder to everyone that the imagined future is not here yet; that there is work to be done; and that everyone has a stake in seeing that that work is completed.  If it is not completed, everyone will be the worse for it.

For now it is worth hoping along with Justice Black, who wrote in response to the effects that McCarthyism had on free speech in America, that brighter days are ahead.

“Public opinion being what it now is, few will protest the conviction of these Communist petitioners,” Black wrote sixty years ago.  ”There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

A cause that everyone should be able to get behind: stop arresting reporters who are just trying to do their jobs.  That’s what Free Press, a national non-profit non-partisan media watchdog group, is hoping anyway.  According to Free Press, as cited in the New York Times, twenty-six reporters have been arrested in connection with covering the Occupy movement.

“After a week in which journalists and police clashed at Occupy Wall Street and related events around the country — and the NYPD arrested 12 reporters — leaders like New York Mayor Michael Bloomberg are starting to feel the heat,” Free Press said in a mass email.

At its sister site, SavetheNews.org, Free Press has started a letter campaign calling on Mayor Bloomberg and other mayors around the country to stop arresting reporters and drop any charges against already arrested reporters.  According to the organization, 30,000 people have put their names on these letters.

“You must publicly commit to defending press freedom in your city and protecting the First Amendment,”  the boilerplate wording states.  ”Please drop all charges against journalists covering the Occupy Wall Street protests and put an immediate stop to all forms of press suppression.”

Free Press also allows you to customize the message, so I added my voice to Free Press’ campaign.  Feel free to add yours too.  Here’s what I said:

The Supreme Court has long ascribed to the belief that a free press is essential to a free democracy.  See New York Times v. Sullivan.  Further, the Supreme Court has emphasized that the press–whether it be the lonely pamphleteer or the Washington Post–owes it to the public to keep a watchful eye on government action and inaction.  See New York Times v. United States.

Arresting reporters is not only bad publicity, but flies in the face of these democratic ideals rooted securely in the American story.  As Justice Douglas said so many years ago, “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

To suppress such speech via a suppression of the press is unacceptable.  To arrest the press for whatever reason is unacceptable.  By arresting reporters, you’re arresting the lawful manifestation of one of our Country’s most cherished beliefs: that a free press is necessary to a free democracy.