Author Archives: William H. Freivogel

Legacy newspapers still dominate democracy on digital frontier

By William H. Freivogel

The title of the conference in Mountain View, Calif., was Legal Frontiers in Digital Media, convened appropriately at the Computer History Museum in the heart of Silicon Valley. But every few hours during its sessions last week, the crown jewels of legacy media, The New York Times and the Washington Post, published bulletins with new disclosures about President Trump.

  • Trump told Russians that firing ‘nut job’ Comey eased pressure from investigation — Times
  • FBI investigates close Trump White House adviser as person of interest as the Russia investigation ramps up — Post
  • Comey practiced how to keep Trump at bay during meetings, worried president wouldn’t respect legal and ethical boundaries — Post
  • Comey to testify publicly — Times and Post

Sure, these bulletins came into the conference on phone apps. No one waited for the next day’s newspaper. But it was impossible to miss the anachronism of legacy newspapers driving the nation’s biggest story the way the Times drove the Pentagon Papers and the Post drove Watergate almost half a century ago.

However, this time everything was in hyperdrive, with bulletins arriving on cell phone screens a few minutes or hours apart. Instead of the day-long news cycle, there was a new deadline every second. Sometimes the Times would have a bulletin and an hour later the Post would match it or top it. Or the Post would have the disclosure and the Times would match it.

This doesn’t mean media are going back to the old days. But it is a reminder of how important it is for legacy news organizations to find ways to sustain the big, professional news staffs that have connections with top government officials and can bring in scoops. For the time being, the jump in digital subscribers at the Times and the infusion of Jeff Bezos’ money at the Post have reinforced the power of those newsrooms.

Still, today’s media bear only a passing resemblance to the media of the Watergate days. Presenters at the Legal Frontiers conference weren’t lawyers for the Times or the Post, but from Google, Twitter and Facebook.

And the legal and moral questions they addressed were uniquely 21st century issues.

  • If a person has a gun to his head on Facebook Live or Periscope, what should the internet companies do? Cut the feed to protect viewers from the trauma or keep the feed going in hopes users can talk him down? “We leave livestreams up as long as we thing there is a chance of engagement,” says Facebook’s Monika Bickert.
  • When should hateful posts be taken down because they are calls for terrorist acts and when are they merely extreme commentary on the state of the world worthy of continued publication and debate?
  • Should a website called ModelMayhem — “where professional models meet model photographers” — be responsible for sex predators using the site to pose as photographers to lure young children to Florida for sexual exploitation?
  • When is Backpage responsible for sex trafficking resulting from its classified ads?
  • What should Twitter and Facebook do about the silos of truly fake news centered around InfoWars and Breitbart? Brittan Heller of the Anti-Defamation League said its year-long study from 2015 to 2016 found the universe of online accounts spreading fake news and attacking journalists was relatively small and self-described as supporting white nationalism, America and Trump.
  • Should a U.S. contractor shot by ISIS in Jordan be able to collect damages from Twitter, which had to know that ISIS fighters were instigating violence against Americans with their tweets?
  • Must U.S. law enforcement officials go through difficult international channels to get information for a terrorism investigation when that information is probably in a computer in Mountain View?
  • Are European countries conducting a war on U.S. technology companies such as Google and Facebook by trying to enforce European values on U.S. firms — values like the “right to be forgotten” and laws against hate speech. How should the U.S. platforms react when European rulings or laws collide with First Amendment values?

The clash between the dominant European view of privacy and America’s First Amendment values is one between different views of democracy, said Jonathan Kanter, a Washington antitrust D.C. lawyer.

“From the perspective of Europeans it is a desire to protect democracy not damage it…. There is a disconnect between us and Europe on privacy and speech. Privacy is the essence of freedom in Europe. Europe is concerned about private companies (such as Google) making decisions, but we feel competition is essential to democracy.”

Robert Post, the retiring dean of the Yale Law School, agrees that democracy is at stake. “If each person could control information about them in the public sphere, we could not have a democracy,” he said.

Representatives of Twitter and Facebook described elaborate outreach efforts they have made to counteract hate speech with positive speech. These included organizing 80 civil society groups in Germany to promote positive speech. In the U.S., Facebook is working with university faculties to train students on how to use Facebook to counter extremism in their communities.

Post said Google should be treated like a newspaper, not as some private entity outside the public sphere. He quoted the famous French philosopher Alexis De Tocqueville, who wrote in “Democracy in America,” that “nothing but a newspaper can drop the same thought into a thousand minds at the same moment.”

Last week, that 19th century wisdom never seemed truer as the two great U.S. newspapers of the 20th century delivered breaking stories every few hours over their 21st century platforms. Each disclosure dropped into the minds of millions of Americans and each will have an impact on the way voters and their elected representatives view the days ahead in this troubled democracy.

Confidential source stories check presidential abuse of power

Commentary

by William H. Freivogel

Confidential sources are the lifeblood of reporting about abuses of power by high government officials. Source reporting provides a vital check on presidential power.

If the Washington Post hadn’t relied on confidential sources to report about Michael Flynn’s discussions with the Russian ambassador, Flynn might still be the National Security Adviser. President Trump had known about the discussions for two weeks but fired Flynn only after the public disclosure in a source story.

If the Washington Post hadn’t relied on Deep Throat – Mark Felt, the associate director of the FBI – President Nixon’s Watergate abuses of power might never have been fully disclosed.

So this week, the Post acted properly in reporting the information from unnamed “current and former U.S. officials” that Trump had jeopardized an important intelligence source providing information about ISIS. In a boast, Trump reportedly disclosed to the Russian foreign minister and ambassador the city in the Islamic State from which an allied intelligence agency was getting this “code word” intelligence.

And The New York Times acted properly this week in relying on an unnamed source who read them a memo written by fired FBI Director James Comey describing how Trump asked him to shut down the FBI investigation of Flynn.

It is in the public interest for the American people to know how carelessly the president is handling top secret information. It is in the public interest for people to know that Trump may have taken steps to obstruct justice.

The stories are two of many disclosures from confidential sources that have painted a vivid picture of a president out of control. The unnamed sources took extraordinary risks in providing the information to the Post because they may be committing a crime.

This doesn’t mean that all confidential leaks are good. The Bush administration leak that Valerie Plame was a spy did not blow the whistle on wrongdoing by the powerful – it was the powerful trying to punish the whistleblower – in this instance, Plame’s husband, Joseph Wilson who debunked President Bush’s false State of the Union claim about Saddam Hussein getting yellow cake uranium from Niger.

Nor were Judith Miller’s stories about Saddam’s weapons of mass destruction – sourced to unnamed government officials – in the public interest. They primed the pump for war.

And more recently, the publication by WikiLeaks of secrets apparently hacked by Russian intelligence from the Democratic National Committee helped our major adversary destabilize our presidential election. Russian agents stealing secrets online is worse than former CIA agents burglarizing the Democratic National Committee at the Watergate.

Journalism ethics properly urge news organizations to try to get information on the record. But when writing about secrets or the powerful, that’s difficult. Prominent whistle blowers whose identities became known – Daniel Ellsberg, Chelsea Manning and Edward Snowden – were charged with espionage for their leaks – even though the Pentagon Papers and NSA data-mining leaks were in the national interest.

Publishing national security secrets is one of the ways in which the press checks the power of the modern presidency. Justice Potter Stewart said as much in the Pentagon Papers decision opening the way for publication of the top-secret history of the Vietnam War. Stewart wrote: “In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”

The notion that an alert, aware and free press helps create an enlightened citizenry may seem old-fashioned these days when partisans and the president label news they don’t like fake news. But the professional press’ role in informing the people has seldom been more important.

 

From Deep Throat to WikiLeaks

 

Publishing national security secrets

Trump’s explanation of Comey firing provides ultimate test of press’ fairness and truthfulness

by William H. Freivogel

President Trump’s entire presidency, his entire political career in fact, has provided the severest test to the mainstream media’s mission of presenting the news fairly and in context.  No previous president, not even Nixon, has lied so frequently and campaigned so vigorously to delegitimize mainstream journalism.

But Trump’s firing of FBI Director James B. Comey provided the toughest challenge yet for journalists trying to be objective while still reporting the truth.  The reason: The White House’s official explanation of Comey’s firing is almost certainly not the real explanation.

The official explanation by Deputy Attorney General Rod J. Rosenstein might have made sense if issued last July.  Rosenstein based his recommendation on Comey’s announcement that the FBI didn’t have enough evidence to prosecute Hillary Clinton for her email indiscretions.  Rosenstein is right in saying this generally is not the FBI’s job.  The FBI investigates and submits its findings to lawyers in the Justice Department who make the decision on prosecution. Comey, who himself was once deputy attorney general, took on the role of making the decision because Attorney General Loretta Lynch said she would accept his judgment and that of career prosecutors after Bill Clinton’s foolish visit to her on an airplane during the campaign.  It is debatable whether Comey should have made the final decision or whether he should have submitted the evidence to the highest ranking Justice Department official not conflicted.  Probably he should have done the latter.

But when the decision to fire Comey comes 10 months later, in the middle of the FBI’s investigation of Russian influence in the 2016 election, the press could hardly report Rosenstein’s explanation and leave it at that.  Every journalistic instinct tells reporters and editors – and probably most Americans – that Trump fired Comey because the FBI director was ramping up the Russia investigation, which Trump claims is fake news propagated by fake news outlets like The New York Times.  (There are echoes of “third rate burglary” in those Trump tweets.)

Charles Krauthammer, the conservative analyst on Fox, remarked on the implausibility of Trump’s explanation.  “Here is what is so odd about it. This is about, according to the letter by the Deputy Attorney General,… something that occurred on July 5. So we start out with something that is highly implausible. If that was so offensive to the Trump administration, What you would have done, in the transition, you would have spoken with Comey and said we are going to let you go. That’s when a president could very easily make a decision to have a change. That’s not unprecedented. But to fire him summarily with no warning in the middle of May because of something that happened in July is almost inexplicable. Second, the reason ostensibly is, as you read in the letter, for doing something that you are not supposed to do, to usurp the Attorney General. Second, to release all the information which was damaging to Hillary Clinton, Donald Trump’s opponent. Do we really believe that Donald Trump come after all these months, decided suddenly he had to fire this guy because he damaged Hillary back in July? Another implausible conjecture….”

Eric Posner, a law professor at the University of Chicago, put it this way: “In an ingenious bit of Machiavellian jujitsu, Trump fired Comey for incompetence, simultaneously: (1) eliminating an independent official who might act as a check on illegal behavior, (2) paving the way for the appointment of a stooge, and (3) enhancing Trump’s tough-guy image.”

Is this a replay of the Saturday Night Massacre? There are ways to distinguish Trump’s action from Nixon’s.  But there is a fundamental similarity: In each case the president moved to fire the law enforcement official who posed the greatest danger to his presidency.

Michael A. Wolff – Freedom Fighter

by William H. Freivogel

Mike Wolff has helped save men on death row, preserve the St. Louis school desegregation program, end capital punishment for juveniles, protect the vote of poor people, establish jury trials in discrimination cases, preserve jury verdicts in personal injury suits and foster efforts to rid St. Louis’ municipal courts of longstanding injustices.

Few St. Louisans have made such important contributions to the public good over the past 30 years. As a legal services lawyer, civil liberties lawyer, special counsel to Gov. Mel Carnahan, Missouri Supreme Court judge and chief justice and retiring dean of the Saint Louis University Law school, Wolff has always been on the side of equality, freedom and good government.

This is why the Gateway Journalism Review is awarding Wolff the Freedom Fighter award at its First Amendment celebration on March 23.

Not only has Wolff accomplished more than just about any community leader, he always seems to be having more fun than anyone in the room. A big man, Wolff has a ready smile and a repertoire of wry, funny stories on the tip of the tongue. He’s not averse to chuckling at his own stories.

While on the Supreme Court, Wolff was that rare judge who was willing to explain a court decision to a reporter. Even rarer, he wrote like a journalist in a simple, common sense way that people could understand.

When Wolff was chief justice, AT&T Mobility tried to avoid having to pay tens of millions in taxes due on telephones. The company claimed cell phones were actually two-way radios instead of phones.

Wolff interrupted the technical arguments by holding up a cell phone in front of the lawyers and asking rhetorically if anyone doubted it was a phone.

In a 2011 adoption case, Wolff criticized the majority of the court for delaying the reunion of a boy and his immigrant mother whose parental rights had been unfairly terminated by a lower court. Wolff wrote that the mother and boy should be reunited “not in 90 more days or 900 more days, but now.”

Referring to the biblical story of Solomon, Wolff added, “At least Solomon had the option to decree that the child be cut in half. All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed.”

In 2009, when the state Supreme Court rejected a challenge to Missouri’s school funding formula, Wolff lamented that $6,342 went to educate each Festus student, but $16,647 each Clayton student.

“What makes the children of one school district deserving of only about one-third of the education money available for the schools of the children in the highest-spending district?”

he asked.

It’s not surprising that Wolff writes like a reporter. After graduating from Dartmouth, he worked his way through the University of Minnesota law school as a reporter and copy editor on the Minneapolis Star Tribune.

Eddie Roth, a lawyer turned journalist turned public official, puts it this way: “Mike’s record of judicial leadership has his old reporter’s fingerprints all over it. He plied small ‘p’ politics from the bench the way journalists work from newsrooms; not by throwing his weight around, but by throwing well-reported, incisively expressed ideas around. He used fourth estate methods to advance third branch ideals.

“And by forging consensus through carefully constructed, durable foundations of law and fact, Mike Wolff has created platforms on which many have been empowered and inspired to participate in fights to win and preserve freedom.”

After a stint in legal services in St. Paul, Denver and as director in Rapid City, S.D., Wolff joined the Saint Louis University Law School faculty in 1975. He also served as general counsel to the American Civil Liberties Union of Eastern Missouri.

Wolff was the lone Democrat to challenge Republican Attorney General William Webster in 1988.  Terry Ganey, the retired Post-Dispatch reporter who disclosed Webster’s Second Injury Fund scandal, recalls the race: “Webster, an incumbent, was considered unbeatable. Wolff at that time raised the issue of the Second Injury Fund being a problem. He was way ahead in making that an issue.”

Wolff lost in 1988 and lost the Democratic primary four years later to Jay Nixon. But the abuses of the Second Injury Fund helped bring down the Webster in the 1992 race for governor against Mel Carnahan. Wolff became Carnahan’s counsel.

One of Wolff’s leading accomplishments was to help craft legislation, supported by the governor, business leaders and a bi-partisan group of legislators, that made possible a negotiated settlement of the St. Louis desegregation case. The legislation extended the life of the novel program, which continues to exist, and directed state money to school districts with large percentages of poor children. The legislation finessed resistance from Nixon, who had waged an all-out legal campaign to end the transfer program.

As counsel Wolff reviewed the pleas of death row inmates. After Carnahan named Wolff to the state Supreme Court, Wolff was a leader of the court’s close scrutiny of capital cases.

Wolff joined the opinion of his friend, the late Richard Teitelman, in freeing Joseph Amrine from death row after the three key witnesses recanted their testimony. Wolff also took of heat of writing the decision giving Kenneth Baumruk a new trial in 2002. Baumruk had been convicted in the same courthouse where he had killed his wife and shot four others.

The most important death penalty decision led to the U.S. Supreme Court to end the execution of juveniles.

It’s not often that a state supreme court leads the U.S. Supreme Court into a new interpretation of the Constitution. But that’s what happened after the state Supreme Court ruled 4-3 that Christopher Simmons could not be executed for murdering Shirley Crook because he was under 18 when he committed the crime. The U.S Supreme agreed that evolving standards of decency no longer permitted executing teens because their brains are not fully developed.

In another notable decision, Wolff was part of the majority that ruled photo ID requirements violated the promise of equality in the Missouri Constitution. That decision has blocked stringent photo ID laws for the past decade.

In other important decisions, Wolff established the right to a jury trial in employment discrimination cases, rejected caps on damage awards as deprivations of the right to trial by jury and upheld the right to collective bargaining for public employees. While on the court he also chaired the Sentencing Advisory Commission and was active in national efforts aimed at more rational, less arbitrary criminal sentencing.

After the court, Wolff became dean of Saint Louis University Law School, righting the ship after a tumultuous period during which the Rev. Lawrence Biondi forced out one dean and appointed an interim dean who did nothing to quiet things down.

The law school became a hotbed of reform of the municipal courts after the death of Michael Brown in Ferguson in 2014. This was a tricky situation because notable alums were on different sides of the municipal court issue. Thomas Harvey, head of ArchCity defenders, led the reform effort, while other graduates were in prominent municipal court judgeships.

Faculty also got heavily involved in the reform, including Professors John Ammann and Brendan Roediger. Wolff saw it as his job as dean to make sure Ammann and Roediger could fully represent their clients, whose lives had been damaged in the muni court shuffle of being locked up for failing to pay traffic fines.

Nor was Wolff afraid to criticize his old colleagues for moving too slowly to bring an end to the unjust practices in the municipal courts. Last summer, Wolff expressed his impatience with the slow response from the presiding judge of the St. Louis County Circuit Court and from the state Supreme Court. That was before the Supreme Court acted at the end of the year to required important changes.

Wolff’s wife, Dr. Patricia Wolff, has long run the Meds & Food for Kids foundation that feeds a miracle peanut butter supplement to malnourished children in Haiti, saving hundreds of thousands of children.

It’s hard to think of another St. Louis couple that has contributed so much to the public good.

From Deep Throat to WikiLeaks

By William H. Freivogel

The most outstanding example of the press and the courts acting together to check the abuse of presidential power is the Pentagon Papers.

Congress had fallen down on its oversight during when on Aug. 7, 1964 it approved the Gulf of Tonkin resolution authorizing the Vietnam War. The resolution was based on murky — and it turned out false — assertions that North Vietnamese torpedo boats had twice attacked the USS Maddox off the coast of Vietnam.

As the war dragged on and tens of thousands of men died, the press brought the bloody reality of combat to the nightly news, sowing seeds of doubt in Walter Cronkite and the American people. Arkansas Sen. J. William Fulbright held high-profile hearings later in the war, but Congress did not withdraw its authorization.

Daniel Ellsberg, a disaffected former military analyst and defense expert at Rand Corp., leaked a 47-volume top-secret history of the Vietnam War — the Pentagon Papers — to the New York Times. Publication began in the spring of 1971. The documents showed presidents Lyndon B. Johnson and Richard M. Nixon had lied to the American people and Congress about important aspects of the war, puncturing the myth that voters had to defer to a president’s judgment because he surely knew more than the ordinary citizen. The president knew more, all right, but the additional information was a reason not to fight the war instead of a reason to fight.

Nixon tried to block publication, partly because National Security Advisor Henry Kissinger told him voters would no longer defer to presidents if they saw presidents had lied to them. But the courts backed the press and said the government couldn’t stop publication of national security secrets unless there was the threat of “direct, immediate, and irreparable damager” to national security.

Justice Potter Stewart explained the important check on presidential power that the press and people provide, especially when Congress does not stand up to the president. Stewart wrote:

“In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches, has been pressed to the very hilt since the advent of the nuclear missile age.…

“In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry — in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and free press, there cannot be an enlightened people.”

Erwin Griswold — the solicitor general who had filed a secret brief with the Supreme Court claiming there were more than a dozen drop-dead secrets in the Pentagon Papers — later wrote that none of the secrets caused the United States harm once disclosed.

One similarity between the Pentagon Papers and the Trump/Russia stories is that the source of the leaks had an intelligence backgrounds. When intelligence sources provide journalists with damaging secrets and the courts protect the press’ publication of those secrets, a president can find himself in a lonely place.

Deep Throat

A year later, the mysterious “Deep Throat” began meeting with Bob Woodward in an underground garage in Washington. Deep Throat turned out to be Mark Felt, the associate director of the FBI whom Nixon had passed over the lead the agency after J. Edgar Hoover’s death.

The Washington Post stories stirred the professional curiosity of U.S. District Judge John Sirica, who applied pressure to induce Watergate burglars to confess to White House connections.

Later, when a special prosecutor sought the secret tapes of White House conversations, the Supreme Court forced their release and Nixon left office a few days later. So it was a one-two punch by the press and the judiciary that forced Nixon from office.

There was one other important ingredient to the Watergate scandal. Congress fulfilled its role in checks and balances with the important Senate Watergate hearings and a move toward impeachment.

A similarity between Watergate and the Trump situation is that Watergate involved a burglary of the Democratic National Committee headquarters; the Russian hacks were a modern-day cyber-theft of DNC documents.

Jason Blair and Judith Miller

The Sept. 11, 2001 attacks, the D.C. sniper murders and the anthrax poisonings discredited the press’ use of unnamed sources and tested the press’ spine for checking presidential power.

New York Times reporter Jason Blair built his fabricated stories about the sniper on fictitious confidential sources. Judith Miller of the Times used real but inaccurate confidential sources in government to help President George W. Bush beat the drum for a war against Iraq. The Times also ran a column falsely implicating scientist Steven Hatfill in the anthrax poisonings.

Compounding the problem, the press as a whole failed to scrutinize the president’s justification for the war in Iraq, a justification found to be false when no weapons of mass destruction were found.

With Congress, the courts and the press all on the sidelines, the unchecked president took America into a pre-emptive war against Iraq based on the danger of weapons of mass destruction that didn’t exist.

After the fall of Baghdad, as the insurgency grew in Iraq, Ambassador Joseph Wilson disclosed in a New York Times op-ed that the government knew before the war that Saddam Hussein had not bought uranium from Niger for a bomb – despite Bush’s claims to the contrary in his State of the Union speech. I. Lewis “Scooter” Libby, Cheney’s chief of staff, struck back at Wilson by leaking the secret that his wife, Valerie Plame, was an uncover CIA agent — an effort to force the whistleblower’s family to pay a price for telling the truth.

Guantanamo and the Geneva Conventions

The courts and the press reasserted their power to check Bush in the years after the war.

The Washington Post disclosed that the CIA was using secret “black” prisons in foreign countries to hold terrorism suspects and apply “enhanced interrogation techniques,” such as waterboarding. The New York Times disclosed what appeared to be illegal and unconstitutional wiretaps of American citizens conducted without warrants. Both stories relied on unnamed sources.

In a Dec. 5, 2005 meeting at the White House, President Bush and his top advisers warned Times publisher Arthur Sulzberger and top editors that they would have “blood on their hands” if the disclosure of the secret wiretaps helped al-Qaida carry out another attack on U.S. soil. The Times published despite the threat.

Meanwhile, the Supreme Court rejected the Bush administration’s assertion that the courts could not review the president’s detention of al-Qaida prisoners at Guantanamo Bay.

The Supreme Court found that even the Guantanamo prisoners could go to federal court. In addition, they were entitled to the rudiments of due process, such as the opportunity to hear and refute charges against them.

The legal argument that Trump’s lawyers made in defense of the president’s ban on travel from seven predominantly Muslim nations was similar to the Bush claim about the Guantanamo prisoners. Trump maintained that the courts had no business reviewing his executive order because he had absolute power in arena of immigration and national security.

The 9th U.S. Circuit Court of Appeals decision rejecting Trump’s argument cited the Supreme Court’s earlier decisions against Bush’s claim of absolute power at Guantanamo Bay. It noted that the Supreme Court had found the “political branches” lack “the power to switch the Constitution on or off at will.”

Trump’s warning that the judges would deserve the blame if the delay of his order resulted in a terrorist attack was reminiscent of Bush’s warning that the Times would have blood on its hands if it disclosed the NSA wiretapping.

Snowden and the NSA

The most recent example of the press checking the power of a president was Edward Snowden’s leak of information about the extent of NSA spying on Americans. Snowden, who worked for the defense contractor Booz Allen, leaked information about the NSA’s collection of metadata on the telephones calls of all Americans and about the PRISM program collecting internet content.

Initially, the NSA claimed the programs had been valuable in stopping scores of terrorist attacks. But it turned out that there was no proof that the information had stopped a single attack.

The Obama administration sought to prosecute Snowden for violating the Espionage Act, but he obtained asylum in Russia. Meanwhile, Obama signed a reform law that put the NSA program on a firmer legal footing by having private phone companies collect the metadata instead of the government.

Crying wolf

One characteristic common among confidential source stories is that the government almost always cries wolf about the dire consequences of publication.

Nixon’s solicitor general wrote a brief of drop-dead secrets that would cost tens of thousands of lives. The solicitor general later said there was no harm.

Bush warned Times’ editors they would have blood on their hands, but there was no attack resulting from the publication of NSA wiretapping.

And the Obama administration claimed Snowden’s disclosures would end surveillance techniques that had stopped scores of attacks. But they later admitted there was no proof that U.S. attacks had been stopped.

One government warning that proved prescient was Kissinger’s to Nixon – If the people knew from the Pentagon Papers that presidents lied about the Vietnam War, they might not believe presidents in the future.

The people found out from the press and they have been skeptical of presidents ever since.

Trump attacks checks on his power

By William H. Freivogel

 

In the past half century the most reliable checks on presidential power have been a watchdog press and independent judiciary. In his first weeks in office, President Donald Trump has attacked the legitimacy of both institutions with a fusillade of insults, misstatements and lies.  They were among the 133 lies and misstatements that the Washington Post counted over the president’s first 34 days.

Trump labeled judges who blocked his immigration travel ban a “so-called judge,” “ridiculous,” “disgraceful” and deserving “blame…if something happens.” White House policy adviser Stephen Miller went so far as to say “the powers of the president to protect our country…will not be questioned.”

Meanwhile, in a remarkable feat of jujutsu, Trump captured the term “fake news” and wielded it as a sword against legitimate news organizations.  After having been accused of benefiting from fake news in the run-up to the 2016 election, Trump turned the tables and expropriated the slogan to attack news he doesn’t like.

And it’s becoming a popular propaganda technique worldwide.  Vladimir Putin has claimed reports of Russian hacking in the 2016 U.S. election are fake news, even though they are substantiated by Western intelligence.  And Syria’s President Bashar Assad has claimed Amnesty International’s reports of mass hangings are also “fake news.”

Even as Trump branded legitimate news as fake, his White House issued press credentials to the likes of Gateway Pundit Jim Host, a St. Louisan who regularly reports false news and conspiracy theories.

Trump himself seems to believe the conspiracy theories. In the most extraordinary and unverified claim of his young presidency, Trump tweeted on March 4 that former President Obama tapped the phones at Trump Tower as part of an Obama plot to undermine his administration.  Trump apparently relied on radio host Mark Levin, Rush Limbaugh and Breitbart for his information.  Had he instead checked with his own FBI director, James Comey, he would have been told his tweet was untrue.

After the tweet, newly credentialed Gateway Pundit headlined: “Incompetent AND Criminal: Obama’s Wiretapping of President Trump Icing on the Cake of Worst President Ever.”  Breitbart called the “scandal” “DeepStateGate,” a reference to the conspiracy theory that a shadow government of unelected officials and intelligence officers controls the government.

Trump capped his first month in office calling the mainstream media the “enemies of the people” — by which he means his enemies.

The Supreme Court viewed the press’ role in the opposite fashion in the 1971 Pentagon Papers case when it laid out the importance of the press as a check on presidential power in the nuclear age. In siding with the New York Times’ publication of the secret history of the Vietnam War, the court said an enlightened citizenry is a important check on presidential power in foreign affairs and there couldn’t be an enlightened citizenry without a press that is “alert, aware and free.”

No president before Trump has so personally and quickly attacked the media or so rapidly created a credibility gap through false public statements.  The closest historical analogy is President Richard M. Nixon with his enemies list, vice presidential attack dog and illegal taps of Washington reporters.  Nixon’s presidency didn’t turn out well.

Meanwhile, the branch of government the Founding Fathers envisioned as the main check on the president — Congress — is behaving like a lapdog.  The Republican-controlled Congress has done little to push back, excited that a unified Republican government can accomplish major parts of the GOP legislative agenda.

With a compliant Congress, the Trump attacks on the two remaining checks on his power make sense:  Target the two institutions that can limit your power. But what is the end game envisioned by Trump and the architect of this strategy, Stephen Bannon, the former Breitbart editor who speaks of a “fight a day” with the press?

In modern history, presidents fighting with the press and judiciary have failed.

The judiciary and press gain power

After World War II, both the federal courts and the press asserted new power. Chief Justice Earl Warren’s Supreme Court took the lead in recognizing broader civil rights and civil liberties protections. At the same time, the Golden Age of investigative journalism fortified the media’s role as watchdogs guarding against government abuse.

The pinnacle of this Golden Age was Watergate when Bob Woodward and Carl Bernstein of the Washington Post reported on the use of Nixon campaign money to fund illegal acts, such as the burglary of the Democratic National Committee headquarters at the Watergate hotel.

Those stories, like most of the journalistic challenges to presidential power, were based on unnamed sources. Deep Throat, the most famous confidential source in history, helped Woodward and Bernstein bring down Nixon.

Confidential sources have been essential to the most consequential disclosures about Trump as well.

Vice President Mike Pence reportedly learned that National Security Advisor Michael Flynn had lied to him about contacts with Russian Ambassador Sergey Kislyak by reading about the contacts in a Washington Post story. Trump had known about the contacts for days but apparently hadn’t told his vice president before the Post’s story based on unnamed sources.

Similarly, the Washington Post’s sourced account about Attorney General Jeff Sessions meeting with Kislyak, despite Sessions’ contrary testimony, led less than 24 hours later to Sessions’ recusal from the investigation of the Russian meddling in the election.

Trump complains about the leak of secret information by unnamed sources, and with some justification. Leaking top secret information is a crime.

But the publication of the leaks is not a crime. And it took the Washington Post stories with their unnamed sources to force Flynn’s resignation and Sessions’ recusal.

Media ethics codes advise journalists to minimize the use of confidential sources. The reader has no way of knowing whether to believe a nameless, faceless leakers. But the reality of Washington is that big stories checking presidential power almost always rely on confidential sources. People leaking top secret information would get fired and jailed if identified.

Good source stories and bad ones

Not all confidential source stories are created equal. Some serve the public good; some do not.

The leaks of the top-secret Pentagon Papers and of Watergate investigative information revealed serious abuses of presidential power. Edward Snowden’s disclosure that the NSA was collecting the metadata from all Americans’ phone calls got him charged with Espionage, but also led to reforms protecting privacy.

By contrast, the 2003 leak by Vice President Dick Cheney’s office of Valerie Plame’s identity as a CIA agent seemed intended to punish Plame’s husband, Ambassador Joseph C. Wilson. Wilson had blown the whistle on President Bush’s false claim about weapons of mass destruction in Iraq. Bush claimed in the 2003 State of the Union speech that Saddam had bought yellow cake uranium for a bomb from Niger, even though Wilson himself had investigated for the CIA and disproved the claim.

It was an upside-down leak with the people in power leaking top-secret information to punish the whistleblower — Ambassador Wilson. Usually, however, it’s the other way around, with whistleblowers leaking information about the abuse of power by top officials.

Julian Assange and WikiLeaks also performed a disservice to American democracy by serving as the apparent delivery system for Putin’s assault on the 2016 presidential election. Think of it: WikiLeaks and then the mainstream media became accomplices of Russia’s successful attempt to destabilize the election of the greatest democracy in the world.

One ethics issue most journalists have not confronted is whether reputable news organizations should refuse to print the bad leaks – the ones where high officials are leaking to damage whistleblowers, such as Wilson, or where WikiLeaks is weaponized to deliver hacks from Russia’s FSB.

The answer is tricky. Almost all leakers have mixed motives. Woodward and Bernstein claimed for years that Deep Throat did not have an ax to grind, but Deputy Director Mark Felt was mad at Nixon for passing him over to head the FBI. And if news organizations had refused to print the hacked DNC-Clinton foundation emails, they would have looked as though they were protecting Hillary Clinton.

News organizations should remember, however, that The New York Times’ demand for a leak investigation of the Plame outing boomeranged into Times reporter Judith Miller spending 85 days in jail for protecting her source in the vice president’s office.

Lessons for journalists

The past half century provides lessons for journalists performing the press’s constitutional duty to check President Trump’s power:

— When the press does not check presidential abuses of power, a president with a Congress of his own party will be unimpeded in his exercise of power. The beginning of the Vietnam War and the Iraq war are examples.

— The press’ use of confidential sources was essential to every major case where the press has checked presidential power — Pentagon Papers, Watergate, CIA black prisons, NSA wiretaps during the Bush administration and NSA data collection during the Obama administration.

— The use of confidential sources can be abused when used to support the presidential power to wage war as with Judith Miller, or to punish a whistleblower as with Valerie Plame or to harm the United States as with the weaponization of WikiLeaks as an instrument of Russian intelligence.

— Old-fashioned investigative reporting – such as Watergate, the Pentagon Papers, the black CIA prisons and the NSA wiretapping — is essential to the press’ check on presidential power. Stories moored to facts are more persuasive than flights of advocacy reporting.

— The press’s role of finding the facts and getting as close as possible to the truth is fundamental to the functioning of democracy because an unenlightened citizenry can enable bad government just as surely as an enlightened citizenry is essential to good government.

Today’s press is built on the Enlightenment assumption that free speech and a free press can find the facts that a democracy needs to arrive at governing truths. That still is possible in these days of the Trump administration when propaganda spreads across the political spectrum and across media platforms. But it requires hard work by journalists and sophistication from citizens.

Justice Louis Brandeis, one of the great justices of the 20th century, famously expressed his confidence that free expression would help democracy find truth: “Those who won our independence believed,” he wrote, “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 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.”

The Bill of Rights puts on a business suit

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When America celebrated the 200th birthday of the Bill of Rights in 1991, no one foresaw the powerful forces that would remake it over the next quarter century.

  • The communications revolution and rise of Facebook-Twitter-Google democracy
  • The loss of privacy to unforeseen technology
  • 11, 2001, and the growth of the national security state
  • Citizens United and the flood of big money into elections
  • The Wild West of a virtual public forum flooded with news, fake news and hate speech
  • The nation’s fascination with guns and expansion of Second Amendment rights
  • The evolving decency that ended the execution of juvenile killers

By 1991, the First Amendment had developed into a powerful shield against government abuse of outsiders, leftists, anarchists, communists, labor unions, Jehovah’s Witnesses, atheists and non-Christians.

“The Bill of Rights is a born rebel,” wrote Frank I. Cobb, a 20th century news reporter. “It reeks with sedition. In every clause it shakes its fist in the face of constituted authority… It is the one guarantee of human freedom to the American people.”

But in the past 25 years the Bill of Rights has put on a business suit. Today it increasingly protects the wealthy, corporations, conservatives, fundamentalist Christians, property owners and other moneyed interests.

“The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers” says Gregory P. Magarian, law professor at Washington University and former Supreme Court Clerk.

In 1991, liberals worried the conservative Supreme Court would cut back on civil liberties. In 2016 many liberals fear the Supreme Court has granted too many new rights.

Liberals often find themselves calling for less-expansive rights:

  • Fewer free speech rights for corporations and rich people to influence elections.
  • More restrictions on campus speech in the form of trigger warnings and rules against  “micro-aggressions.”
  • Less religious freedom for conservative Christians to refuse to bake a cake for a same-sex couple or to fill a prescription for the morning-after pill.
  • Fewer rights for gun owners.
  • Fewer free speech rights for workers who don’t want to pay union dues.
  • Fewer property rights to block environmental regulations of beachfronts and wetlands to preserve endangered species.

By contrast, many conservatives worry that liberals’ restrictions on freedoms can leave elections in control of the big media corporations, can enforce political correctness on campus and in society, can force God-fearing pharmacists, bakers and florists to compromise deeply held religious beliefs, can take away guns from law-abiding citizens and subject property owners to extreme environmental regulations.

And then there is President-elect Donald Trump, a force of his own, who ran a campaign opposed to political correctness but who now complains about speech he finds incorrect — from burning the flag to investigative journalism and an actor’s critical speech from the stage production Hamilton. Playhouses are supposed to be “safe” spaces, Trump says, but campus rules intended to make minorities feel safe are political correctness. Trump advocates laws criminalizing flag-burning and making it easier to win libel awards from media, even though those laws would be unconstitutional violations of the First Amendment.

What follows are some of the most important changes that have occurred in the Bill of Rights in the quarter century between its 200th anniversary in 1991 and its 225th this Dec. 15.

 

Communications revolution — what press?

 

In 1991 there was no Internet, no Google, no Facebook, no Twitter, no smart phone, no Fox News, no Huffington Post, no Breitbart and no WikiLeaks. Rush Limbaugh was just starting right-wing radio rants. There were no likes or tweets or citizen journalists. The golden age of legacy journalism sailed obliviously on, like the Titanic toward an unseen iceberg. The notion that millions of tweets could overwhelm the narratives of professional journalists was unimaginable. So was the idea that a president could get elected partly on the strength of 140 character messages insulting opponents and private Americans. Or that “publisher” Julian Assange would become the purveyor of documents hacked from the Democratic Party by Russian spies. Or that thousands of “chatbots” — online robots with artificial intelligence — would post fake news across the Internet in the days before the 2016 election.

 

Watergate forgotten

 

At the same time the communications revolution have transformed speech in the public space, unlimited election spending by corporations, labor unions and the wealthy have transformed political campaigns. Watergate’s lesson of “follow the money” is a distant memory. Thanks to Citizens United, corporations have a First Amendment right to spend as much money as they want on the election of a candidate and the voters don’t get to know who gave millions until after the election. Campaign spending for the two major presidential candidates exceeded $2 billion this year, more than four times that of 1992 when candidates still relied on the now defunct post-Watergate public financing system.

 

 

National security state

 

1991 was a decade before 9/11. No one imagined terrorists bringing down the World Trade towers and attacking the Pentagon. There was no Patriot Act. No prison at Guantanamo to circumvent due process. No drones to kill enemy combatants on foreign soil. The United States was a proud adherent of the Geneva Convention and its bans on torture. Waterboarding was something other nations did. Roundups of men from the Middle East seemed like a bad dream from another era, like the discredited roundups of Japanese-Americans during World War II.

But in the scary time after 9/11, Attorney General John Ashcroft rounded up young Middle Eastern men, triggering a legal case only now playing out before the Supreme Court where the men say they were targeted for their religion. Today’s America is frightened too. The incoming Trump administration talks about banning refugees, deporting immigrants and reinstating torture.

 

Surveillance state

 

The thought that the National Security Agency could collect metadata on all Americans’ telephone calls was preposterous in 1991. The Global Positioning System was for the military, not consumers. A person’s location was not constantly tracked by a cell phone in the pocket. Consumers’ purchases were not constantly tracked by their online searches. And street corners weren’t under 24-hour surveillance from ubiquitous security cameras.

Only science fiction had thought of technology such as today’s Stingray system for picking up phone conversations from outside a building. No one needed a right to be forgotten. But as the sweep of the modern surveillance state began to sink in, the Supreme Court pushed back, ruling the government needed a warrant before putting a GPS device on a suspect’s car or searching a person’s cell phone.

 

Disappearing right of privacy

 

The right of privacy – a right found in parts of the Bill of Rights and in the constitutional protection of “liberty” – was under assault as the Bill of Rights turned 200. It is under assault again at 225. The Supreme Court of 25 years ago was about to hear a case threatening to read the abortion right out of the Constitution. But the court held to precedent. Not only did it reaffirm Roe v. Wade, but it later expanded that right of individual liberty to encompass same- sex marriage – an expansion almost no one would have predicted in 1991 when not a single state permitted same-sex marriage.

But the right of privacy continues to have shallow roots in the Constitution. Many conservatives say these are unenumerated rights that do not deserve constitutional protection. Replacing the late Antonin Scalia and any one of the three oldest justices with two more Scalias could end the constitutional protections for abortion and same-sex marriage.

 

 

Political correctness: equality vs. freedom

 

The tensions between freedom and equality – two great values of the U.S. Constitution and democracy – have intensified. In 1991 political and religious conservatives were realizing the First Amendment’s protection of religious freedom and free expression could protect them against what they saw as an overbearing political correctness embodied in college speech regulations. Today, liberals and conservatives alike worry that trigger warnings, safe spaces and identity politics can stand in the way of a university’s core liberal purpose of challenging a student’s unexamined assumptions.

Last year, Melissa Click, then a communications professor at the University of Missouri, tried to block a student journalist from taking a photo of black protesters who, she said, needed safe space. Click’s attempt to impose a kind of political correctness on the photographer ran into another form of political correctness from the Missouri Legislature, which demanded her job and got it.

Nationwide, blackface and redface Halloween costumes led to an uproar at Yale, Mexican-American costumes to an apology at Louisville and the University of Oklahoma kicked out a student singing a KKK lynching song on a university bus.

 

More state support for religion

 

Since 1991, the Supreme Court has banned public school sponsored graduation prayers, prayers at the Friday night football game and the Ten Commandments on courtroom walls or courtroom monuments. But in a break from the past, the court approved state-funded vouchers for parochial school children. And, in a current Missouri case, the court may allow the state to pay for rubber playground materials for Trinity Lutheran pre-school in Columbia, despite a state constitutional provision that sets up a stricter separation between church and state than the First Amendment. The Supreme Court also opened the way for prayers by local pastors before city council meetings and state and national monuments with religious texts or symbols, such as a six-foot monument of the Ten Commandments on Texas Capitol grounds and the Mojave Memorial Cross built on public land to honor veterans.

 

Religious freedom

 

Anyone taking the time-machine from 1991 straight to 2016 would have trouble figuring out what had happened to religious liberty. Scalia cut back constitutional protection for religious liberty in the 1990 Employment Division v. Smith decision, where Native Americans sought protection for their use of peyote in a sacramental ritual. Scalia said the state could enforce generally applicable state laws – such as those penalizing those using peyote – even if those penalized were exercising their religious freedom. With largely Democratic support, Congress passed the Religious Freedom Restoration Act to overturn Smith and restore a higher level of protection for religious liberty. Now conservative legislators are passing state versions of that law to enable florists and bakers to avoid serving same-sex couples based on religious belief. The Supreme Court also used the federal RFRA to recognize the religious freedom of a corporation, Hobby Lobby, to object to contraception requirements of the Affordable Care Act.

 

Big data

 

“Big data” – the computer analysis of huge data bases – didn’t exist in 1991, but now the Supreme Court protects it. In a 2011 Vermont case, the court ruled the state could not prohibit pharmaceutical companies from obtaining data on doctors’ prescription writing practices. The companies wanted the data to market their more expensive, brand-name drugs to doctors. Vermont had tried to block the release of this prescription information to protect the privacy of the doctor-patient relationship and to keep down health-care costs. Justice Anthony M. Kennedy wrote that the First Amendment keeps the state from singling out “disfavored speech by disfavored speakers” – the disfavored speech being the marketing of brand-name drugs and the disfavored speakers the pharmaceutical companies. Mark Sableman, a media lawyer at Thompson Coburn in St. Louis, says protecting big data is important to modern journalism that often is based on computer-assisted reporting that analyzes huge government databases.

 

Fascination with guns

 

In 1991, Missouri, Illinois and most Midwest states had laws against carrying concealed guns. A few years later Congress banned the manufacture of assault rifles. Now tables have turned. The federal assault rifle ban has lapsed and not a single state bans concealed guns. Faced with an insatiable appetite for guns, all states have either passed laws ending regulation of guns – such as Missouri – or adopted “must issue” laws, such as Illinois, that institutionalize concealed carry. Stand-your-ground and Castle doctrines provide legal protection for using a gun to defend oneself or property. Meanwhile, the conservative majority on the Supreme Court turned its back on precedent and for the first time recognized an individual right to own a gun to protect the home. The decision left plenty of room to regulate assault rifles and concealed guns, but pro-gun majorities in many legislatures, such as Missouri, claim gun laws take away Second Amendment rights. Although the claim is inaccurate, the gun lobby uses it effectively.

 

Ending juvenile death penalty

 

By 1991, most states had passed a new generation of death penalty laws, responding to a 1970s decision that found traditional laws arbitrary and capricious. Twenty-two juveniles were executed between 1985 and 2003. Only Iran executed more young people. Christopher Simmons awaited execution in Missouri for murdering Shirley Crook by tying her to a chair and throwing her into the Meramec River. But in the Simmons case the Missouri Supreme Court led the movement to end execution of murderers 17 and younger. The U.S. Supreme Court agreed, finding that the nation’s and world’s evolving standards of decency no longer permitted executing teens because their brains still were developing. Capital punishment for juveniles was therefore deemed cruel and unusual punishment under the Eighth Amendment. Life imprisonment without parole also violated this standard of decency.

Meanwhile, in Illinois, the Innocence Project, run by former Northwestern University journalism professor David Protess, uncovered more than a dozen cases of wrongful convictions in murder cases. Gov. George Ryan ended executions. Nationally, the number of executions, which had increased to almost 100 a year by the end of the 20th century, has dropped almost every year; 28 people were executed in 2015 and 18 this year through mid-November.

 

What’s liberal and what’s conservative?

 

Taken together, the changes over the past 25 years have mostly broadened and strengthened the Bill of Rights and at the same time protected new conservative causes.

The Earl Warren court of the 50s and 60s protected communists, civil rights protesters, the Ku Klux Klan, a young man wearing a “Fuck the draft” jacket in a courthouse. It protected the media from President Nixon’s attempt to stop the presses printing the Pentagon Papers. And New York Times v. Sullivan protected the northern media from the attempts of southern politicians to bankrupt them for aggressive reporting of the Civil Rights Movement.

During the Rehnquist court the speech of outsiders continued to flourish with protection of flag-burning, Margaret Gilleo’s anti-war sign in the window of her Ladue home and the ribald parody that Hustler magazine printed of the Rev. Jerry Falwell having sex “for the first time” with his mother in an outhouse. But there were signs of change in rulings protecting religious majorities and rejecting hate crime laws.

In the Roberts era, the winners in First Amendment cases have more often been established interests. People who used to be insiders are sometimes on the outs with liberal political majorities – corporations making political expenditures, pharmaceutical firms seeking to use big data for marketing efforts, corporations such as Hobby Lobby objecting on religious grounds to Obamacare rules on contraceptives. Labor unions, already threatened by expansion of right to work laws, now are on the brink of losing the power to charge union dues to workers who say union activities violate their free speech rights.

Whereas the great free speech decisions of the 60s and 70s were sparked by the court’s liberal justices, its conservative justices now are often more likely to support First Amendment claims – such as Citizens United, where the five justices in the majority were the most conservative five.

One factor in the change was the growth of conservative legal advocacy. The Federalist Society, Pacific Legal Foundation, Liberty Counsel and Center for Individual Rights all took a page from the successes of the ACLU, NAACP Legal Defense Fund and Ralph Nader. The ACLU, LDF, and Nader’s groups had won victories for blacks, consumers and students who didn’t want to be forced to pray in school. The new conservative legal groups began winning for white students who felt disadvantaged by affirmative action, Christian students who wanted to meet in campus buildings and property owners fighting environmental regulations that interfered with their property.

Roger Goldman, a professor at Saint Louis University Law School, wonders whether today’s conservative justices would have supported the free speech decisions of half a century ago. “I’m wondering if Roberts and the conservatives would have joined the liberals in the old First Amendment cases involving communists, loyalty oaths, obscenity, etc.,” he wrote in an email. “In other words, (I’m wondering whether) the new conservatives disagree with the old conservatives of the 40s thru the 90s.”

Professor Joel Goldstein, also at Saint Louis University, raises the opposite question. Justice Louis Brandeis was one of the great architects of First Amendment law in the 1920s, but Goldstein says Brandeis might have dissented from a decision giving First Amendment protection to the Rev. Fred Phelps who picketed the Catholic funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq.

Phelps’ Westboro Church says God is punishing the United States for homosexuality. The signs the church members carried read: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell” and “God Hates You.”

Roberts likened his decision to free-speech precedents of the past, including the flag-burning decision, the New York Times v. Sullivan libel decision and Cohen v. California permitting a war protester to wear into a courthouse a jacket with the words “Fuck the Draft.”

In New York Times v. Sullivan, Justice William J. Brennan Jr. wrote the First Amendment required enough breathing space to allow news organizations to make mistakes about public officials. Chief Justice Roberts said that Westboro protesters were addressing issues of public concern and needed breathing space as well.

Just as the court had once upheld a parody of the Rev. Falwell’s “first time”with his mother in an outhouse, Roberts said that the Westboro protesters hyperbole was protected.

But Goldstein doubts Brandeis would have gone along. “Brandeis wrote one of the most powerful justifications of free speech…,” Goldstein said, “yet also believed in a right to privacy… Although I am always skeptical of claims regarding how someone who has been dead for nearly 70 years would have reacted to contemporary circumstances, it’s hard for me to believe Brandeis would have thought a funeral was a constitutionally protected venue for speech attacking the decedent.

“…If we as a society recognize a right to privacy that goes beyond spatial confines, I would think that a funeral would rank at or near the top of experiences where the claims would be strongest. Surely someone who is grieving the loss of and burying a loved one in engaged in one of the most poignant of life’s experiences….”

Alito v Lessig

Today the calls for constitutional amendments or constitutional conventions are as likely to come from liberals as conservatives.

Some liberal groups would like to see constitutional amendments that protect positive rights, such as the right to an education, health care and housing. The current Bill of Rights protects negative rights – blocking government abuses of the people.

Some conservative groups would like amendments to ban burning the American flag, redefine citizenship, require a balanced budget and protect victims of crime.

One amendment that has gotten quite a bit of attention is advanced by Harvard Law Professor Lawrence Lessig and liberal groups for overturning Citizens United by enabling Congress to regulate political spending and contributions. Forty senators have signed on to the amendment.

Justice Samuel Alito, one of the leading conservatives on the court, made it clear in a speech to the conservative Federalist Society after Trump’s election, that he and other conservatives oppose that amendment and others that would undo the conservative handiwork of the past 25 years that expanded the First and Second amendments.

“More than 40 senators have proposed an amendment to the First Amendment, which in itself is an important development,” Alito said. “And what would that amendment do? It would have the effect of granting greater free speech rights to an elite group, those who control the media, than to everybody else.”

Alito also worried that a more liberal court could overturn the 2008 Heller decision recognizing an individual’s right to own a gun. He called that opinion “perhaps Justice Scalia’s most important majority opinion.”

Alito mocked the University of California’s suggestion that the term “melting pot” was a micro-aggression offending minorities. He questioned campus speech codes as inconsistent with a famous line from Justice Robert Jackson’s opinion in 1943 holding that students who were Jehovah’s Witnesses didn’t have to salute the flag because of their belief it was a graven image.

Jackson wrote then, “If there his a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

Alito added, “On college campuses, both public and private, a new orthodoxy rules. Suppose a student were to test Justice Jackson’s proposition today by wearing an article of attire supporting a political candidate who was unpopular among students and professors by proclaiming that the United States is a great and a good country and by expressing certain traditional religious beliefs.

“How would that go over?”

In the passionate pleadings of both left and right there is a common thread: Something is wrong with our democracy, whether you call it the Facebook Democracy, the Post-Fact Democracy, the Digital Democracy, the Virtual Democracy, the Surveillance State or the Politically Correct Democracy. The great task of the 21st century is adapting democracy to the rapid expansion of freedoms, the flood of information and disinformation and the new gadgets of communication that are just as likely to invade privacy as to connect us to the rest of the world.

The press’s identity crisis

The press is losing its power, its credibility and its way.

As the Bill of Rights turns 225, the one business it protects, the press, is suffering an identity crisis.

Who is a journalist? Is Julian Assange a publisher? By democratizing news does the Internet serve democracy or confuse it? By serving as a world wide communications system does the web draw us together or fracture us into warring factions? Should Facebook and other online social media take down false news or hate speech or alt-right advocacy or incitement against police?

Why didn’t voters heed the investigations and fact-checks of Donald Trump? Does adherence to journalistic neutrality obscure the truth in false equivalencies? Is Trump, with his morning tweets, playing the press by setting the news agenda? Should the press publish WikiLeaks’ stolen emails, even if it is effectively serving as an arm of Russian intelligence? How can professional journalists regain trust and distinguish their work from the fake news exploding on the Internet?

 

A 25 year fade

 

In 1991, on the 200th anniversary of the Bill of Rights, the press was at the height of its power and influence although people’s confidence was low.

Now, 25 years later, the power and influence of the mainstream media have waned and the people’s trust has fallen even more precipitously. Just after Watergate, 72 percent of Americans had confidence in the press, according to Gallup. The number dropped to 55 percent in 1991. Now it’s 32 percent with only 26 percent of those under 50 saying they have confidence.

A majority of the youngest citizens, Millennials and Gen Xers, report getting most of their news about politics and government from Facebook, which isn’t a news organization.

The mainstream media have themselves to blame in part for the lost credibility. Jason Blair invented stories at The New York Times. Judith Miller reported for the Times on weapons of mass destruction that didn’t exist. Leading news organizations all but convicted the nuclear scientist Wen Ho Lee of espionage and Steven Hatfill of sending anthrax to Capitol Hill. Neither accusation was true.

Meanwhile the legacy media were sidetracked by the biggest revolution in communications technology since Guttenberg’s movable press half a millennium ago. Science put magical devices in everyone’s pocket that permitted instantaneous communication.

The list of new communications devices, institutions and communication terms is mind-numbing – citizen journalist, smartphone, GPS, social media, Google, Facebook, Twitter, Snapchat, Instagram, Periscope, livestream, tweet, aggregate, link, likes, impressions, shares, comments, friends, followers, page views, click bait, fake news, big data, Drudge, Breitbart, alt-right, Huffington Post, Fox, MSNBC, chatbots, WikiLeaks, Google Earth, Google Street View, virtual reality, photoshop, face recognition software.

As news media platforms explode, the press is having a nervous breakdown that echoes through the public space and challenges democratic processes. The word – press – is itself an anachronism as printing presses close across the country.

The number of reporters in newsrooms has declined by 20,000 in the past decade. That is a decline of about 40 percent, from 54,000 to 33,000. With each buyout and layoff, news organizations lose the muscle to serve as watchdogs.

More than 120 daily newspapers have closed since 2004 and print advertising is falling off a cliff. It was down 8 percent last year nationally, according to a Pew study, with print advertising at The New York Times down double digits.

 

Existential crisis

 

But the crisis runs deeper than closed newspapers and empty newsroom desks.

Christiana Amanpour, the CNN foreign correspondent, said a month after the presidential election that journalists face an existential crisis. She said:

“We have to accept that we’ve had our lunch handed to us by the very same social media that we’ve so slavishly been devoted to.

“The winning candidate (Trump) did a savvy end run around us and used it to go straight to the people. Combined with the most incredible development ever–the tsunami of fake news sites–aka lies–that somehow people could not, would not, recognize, fact check, or disregard.

“…Facebook needs to step up…I feel that we face an existential crisis, a threat to the very relevance and usefulness of our profession…”

“In the same way, politics has been driven into poisonous partisan and paralyzing corners…that same dynamic has infected powerful segments of the American media…Journalism itself has become weaponized. We have to stop it.”

A decade ago, Cass Sunstein, a First Amendment expert, foresaw potential dangers ahead. “As a result of the Internet, we live increasingly in an era of enclaves and niches—much of it voluntary, much of it produced by those who think they know, and often do know, what we’re likely to like,” Sunstein said in 2007. “If people are sorted into enclaves and niches, what will happen to their views? What are the eventual effects on democracy?”

 

Powerful democratizing force

 

Is Amanpour right or is this handwringing by overwrought liberal reporters who wouldn’t see a crisis if Hillary Clinton had won?

In many ways the Internet and social media are miracles of science and engineering. They are powerful democratizing forces that allow outsiders to go over the heads of media elites and get their story out to the country and world.

The outsiders might be the Black Lives Matter protesters alerting the nation and the world to police abuse of African-American men. Or they might be conspiracy theorists who think 911 was a U.S. orchestrated intelligence operation or that the massacre of first graders at Sandy Hook was a fictional Hollywood production designed to take away people’s guns.

Trump used Twitter in very much the same way as Black Lives Matter, getting information to the masses by bypassing or hijacking traditional media.

It may be that the problem with 2016 election coverage was less the Internet and more the habitual failings of the mainstream press.

Thomas Patterson, in a report for the Harvard’s Shorenstein Center on Media, Politics and Public Policy, put his finger on the high level of negativity in the press coverage of both Trump and Clinton. The report showed that only about 10 percent of the presidential election coverage involved policy; about 60 percent focused on the horse race or controversies.

Patterson said, “an incessant stream of criticism has a corrosive effect. It needlessly erodes trust in political leaders and institutions and undermines confidence in government and policy.”

 

Fake news

 

The 2016 presidential election campaign featured an unprecedented amount of fake news online. Both liberals and conservatives were guilty, although Buzzfeed found that hyper-conservative sites had a higher percentage of false or mostly false stories than hyper-liberal ones.

Buzzfeed also found that the entirely false news stories from fake news sites got more attention on Facebook than the top real stories.

“In the final three months of the US presidential campaign,” it concluded, “the top-performing fake election news stories on Facebook generated more engagement than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News, and others,”

Among the fake stories getting the most traction were those claiming the pope endorsed Trump, Clinton sold weapons to ISIS and that an FBI agent investigating Clinton’s emails had been found dead. One of the fake stories about Trump claimed the “surgeon general of the US warned that drinking every time Trump lied during the first presidential debate could result in acute alcohol poisoning.”

 

Pizzagate

 

The gunfire at the Comet Ping Pong pizza restaurant in Washington,D.C. on Dec. 4, 2016 illustrates how fake Internet news, entangled with politics, can have dangerous consequences. The Washington Post retraced the origins of the false story:

In late October and November, more than one million tweets contained the twitter handle “pizzagate.” It referred to an Internet conspiracy that Hillary Clinton was involved in a child sex ring operating out of the basement of a popular Washington, D.C. pizza place called Comet ping pong. (The restaurant had ping pong tables but no basement.)

Alex Jones, the right-wing conspiracy theorist and Trump supporter, jumped into the controversy with a YouTube video stating Hillary Clinton was “involved in a child sex ring” and had “personally murdered, chopped up and raped” children. The video was viewed 427,000 times.

The Friday before the election, the owner of Comet pizza got streams of comments on his Instagram calling him a pedophile. An online conversation on 4Chan and Reddit claimed a child sex operation was being run out of the restaurant with children held in the basement. Nearby shops also began getting threats.

The hashtag #pizzagate was retweeted hundreds or thousands of times each day from places like the Czech Republic, Vietnam and Cyprus. Bots – programs designed to promote tweets – composed many of the retweets.

On Nov. 16, Jack Posobiec, former Naval Reserve intelligence officer involved in a pro-Trump organization, went to Comet to investigate. He walked into a back room where a child’s birthday party was underway and started to livestream it to a worldwide audience on the Periscope app. He didn’t have the family’s permission and the restaurant forced him to leave.

He explained: “People have lost faith with government and the mainstream media being any real authority…If I can do something with Periscope and show what I’m seeing with my own two eyes, that’s helpful.”

On Sunday, Dec. 4, Edgar Maddison Welch decided to self-investigate. He walked into the restaurant with an assault rifle and handgun looking for the children and tunnels. After about 45 minutes, firing the gun but finding nothing, he surrendered.

The Post concluded that Pizzagate was “possible only because science has produced the most powerful tools ever invented to find and disseminate information.”

 

The First Amendment

 

The classic liberal response to false and hateful speech is more speech. As Justice Louis Brandeis put it in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Critics have called upon Facebook to exercise greater editorial control, now that it has become the world’s most influential publisher. And there are indications that it is moving that direction. Facebook has appointed a task force to look into the fake news and Google will bar fake news sites from its AdSense advertising program, cutting off revenue.

But Nicholas Lemann of The New Yorker doesn’t think Facebook is up to the task. ‘It’s a sign of our anti-government times that the solution proposed most often is that Facebook should regulate it. Think about what that means: one relatively new private company, which isn’t in journalism, has become the dominant provider of journalism to the public, and the only way people can think of to address what they see as a terrifying crisis in politics and public life is to ask the company’s billionaire C.E.O. to fix it.’

Lemann has different idea: “If people really think that something should be done about the fake-news problem, they should be thinking about government as the institution to do it.”

That, however, runs smack into the First Amendment. The Supreme Court provides the Internet the same high level of protection as a newspaper. Any government action to sort out and punish fake or misleading news would most likely be unconstitutional.

On one thing Lemann is right. This problem of fake news is not new. Joseph Pulitzer saw the danger more than a century ago when he issued this warning about a world without well-educated journalists:

“Our Republic and its press will rise or fall together,” Pulitzer wrote. “An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery. A cynical, mercenary, demagogic press will produce in time a people as base as itself. The power to mould the future of the Republic will be in the hands of the journalists of future generations.”

Arthur Miller, the playwright, put it more colloquially. “A good newspaper, I suppose, is a nation talking to itself.”

Twenty-five years from now, when the Bill of Rights celebrates its 250th birthday, there probably won’t be daily papers delivered on people’s lawns. But the electronic and digital media that remain need to find a way to help the nation talk to itself again.