Category Archives: On Law

The Constitution under stress after Charlottesville

Opinion

by William H. Freivogel

The bloody weekend in Charlottesville, Va. has put enormous strain on President Donald Trump, the First Amendment and constitutional checks on the president.

Trump flunked the stress test spectacularly in his unhinged, red-faced rant of a press conference by failing to speak to the nation with the voice of moral authority.

The First Amendment emerged from the weekend tattered, facing new questions about how to protect protests when demonstrators are hateful and armed.

But the separation of powers held up pretty well. An unprecedented number of top Republicans criticized their own party’s president for failing to call out white supremacists and neo-Nazis. And the mainstream media continued to pepper Trump with hard questions in the face of the president’s repeated and false refrain about “fake media.” People would understand his view on Charlottesville, he claimed, “if the press were not fake and were honest.”

Going ‘rogue’

Trump wasn’t supposed to answer questions after his Trump Tower event on infrastructure on Tuesday, but he went “rogue,” as one staffer put it. Chief of Staff John Kelly stood glumly to one side.

White House economic adviser Gary Cohn, standing near the president, was “particularly displeased” according to Politico, that “the president launched into a rant about the culpability of the ‘alt-left’ while calling some of the protesters at the white nationalist rally ‘very fine people.’”

Transportation Secretary Elaine Chao, Senate Majority Leader Mitch McConnell’s wife, also was trapped next to Trump. McConnell on Wednesday said simply, “There are no good neo-Nazis.”

Exhibiting the nastiness he shows when backed into a corner, Trump went out of his way to attack Sen. John McCain, R-Az. Asked about McCain’s criticism of the alt-right, Trump shot back, “you mean Sen. McCain who voted against us getting good health care.” Then, in an especially distasteful quip, he added sarcastically, “I’m sure Sen. McCain must know what he’s talking about it.” McCain is under treatment for brain cancer.

By Wednesday the resignations of seven top industry leaders from presidential advisory councils led Trump to dissolve two of them. He didn’t hesitate to blast some of those who quit in protest for failing to bring jobs back to the United States.

Sprinkled throughout the press conference were attacks at the media. “I’m not finished, fake news,” he said when he thought a reporter was interrupting. At another point, he suggested his view would be better understood “if you were honest reporters, which in many cases you are not….”

“Unlike the media before I make a statement I like to know the facts … I had to see the facts, unlike a lot of reporters” — a claim that doesn’t pass the sniff test coming from the president who has lied more often in his first year of office than any other president.

But most disheartening was the ignorance of American history explicit and implicit in his comments. He defended the “very fine people” there because of “the taking down of, to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name.” He said these protests were understandable when “you are changing history, you are changing culture” by taking down Confederate monuments.

Never mind that these “very fine people” were standing next to white supremacists and Nazi’s chanting, “Jews will not replace us.” Never mind that the city had changed the name from Lee Park to Emancipation Park. Never mind that Trump failed to see the difference between Robert E. Lee, a traitor who fought a war to destroy the United States, and George Washington, who fought a war to create it.

First Amendment

After the death of a counter-protester and two police officers, the ACLU and federal courts faced criticism for having forced the city to allow the demonstration in Emancipation Park, rather than another park a mile away.

As a matter of black letter law, U.S. District Judge Glen E. Conrad was right to issue an injunction forcing the city to allow the demonstration in Emancipation Park. The judge noted that the city had tried to move the white supremacists’ rally away from Emancipation Park, but had not revoked the counter-demonstrators’ permits for the area near that park. This amounted to discrimination against the white supremacists based on the content of their speech, which violates the First Amendment. http://ftpcontent.worldnow.com/wvir/documents/kessler-federal.pdf

But Slate’s Dahlia Lithwick and Mark Joseph Stern suggest future First Amendment cases may have to factor in the growth of the Second Amendment and open carry movement. They wrote:

“The judge (Conrad) failed to answer the central question: When demonstrators plan to carry guns and cause fights, does the government have a compelling interest in regulating their expressive conduct more carefully than it’d be able to otherwise? This is not any one judge’s fault. It is a failure of our First Amendment jurisprudence to reckon with our Second Amendment reality.” http://www.slate.com/articles/news_and_politics/jurisprudence/2017/08/the_first_and_second_amendments_clashed_in_charlottesville_the_guns_won.html

Josh Blackman, a professor at South Texas College of Law Houston, made a similar point in the Lawfare blog. He noted that Justice Robert H. Jackson had once cautioned that if the court “does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. https://www.lawfareblog.com/first-amendment-grounds-charlottesville

Twitter shaming

Another media-related First Amendment issue emerging from Charlottesville was the Twitter campaign – @YesYoureRacist – to shame white supremacists and neo-Nazis who attended the rally.

A first casualty was Cole White, a cook at a hot dog stand in Berkeley, Calif. who lost his job after he was outed as a demonstrator. White has no First Amendment protection because the amendment does not protect people from a private employer.

But Peter Cvjetanovic, a student and employee at the University of Nevada does have constitutional protection from the 10,000 petitioners who demanded him be expelled for his views.

The university said it rejected his views but added, “there is no constitutional or legal reason to expel him from our University or to terminate his employment.”

The university is right. As despicable as Cvjetanovic’s views are, they cannot be the basis of punishment by a state institution.

Those joining in the Twitter campaign might ask themselves how they would feel about a social media campaign to expel a member of Black Lives Matter or the anti-fascist Antifa group? They also might ask whether they want to be part of an online vigilante attack that sometimes mistakenly singles out lookalikes.

In an online piece of the New Yorker, the insightful journalist Robin Wright asks alarmingly, “Is America headed for a new kind of Civil War?” Wright quotes experts who warn America is not immune from the problems that befall other countries.

http://www.newyorker.com/news/news-desk/is-america-headed-for-a-new-kind-of-civil-war

But that is a risk we should be able to avoid as long as the press and courts check the power of this wayward president, as long as Republicans with the spine of Sen. McCain criticize Trump’s excesses and as long as the First Amendment provides a constitutional way for protesters, right and left, to vent their anger.

Trump’s nonsense won’t undermine the First Amendment

opinion

by William H. Freivogel

President Donald J. Trump can spend his entire presidency threatening the press, calling it the enemy, branding real news fake and fake news real.  He can tweet crude attacks on female journalists and post nonsensical videos like the one of him beating up CNN in a parody of Wrestlemania.

But he never will succeed in diminishing the power of the press to hold him to account, nor will he diminish the First Amendment protection that the Constitution and an independent judiciary guarantee to the press as a check on presidential power.

The only thing that President Trump will diminish is himself as he cheapens the highest office in the land and the symbol of American democracy and might.

But many people are worried.

Over the weekend, I was at a party on a front porch in North Carolina enjoying the fireflies and the company.  A group of musicians wondered out loud whether Trump could undermine the press and stifle dissent as authoritarians do in other countries.

The next day, Jim Rutenberg, the New York Times’ excellent media columnist, wrote a gloomy Independence Day piece stating “one of the pillars of our 241-year-old republic – the First Amendment – is under near-daily assault from the highest levels of the government.”

Rutenberg had plenty of examples:

– Trump’s CNN attack parody.

– Trump’s crude tweet describing Mika Brezinski “bleeding badly from a facelift.”

– Trump’s veiled threat toward Jeff Bezos, head of Amazon and the Washington Post: “The #AmazonWashingtonPost, sometimes referred to as the guardian of Amazon not paying internet taxes (which they should) is FAKE NEWS!”

– Sean Hannity’s suggestion that reporters be required to submit questions to the White House in writing and Newt Gingrich’s call to close the White House press room to the media altogether because they have become “a danger to the country right now.” http://www.mediaite.com/online/gingrich-trump-needs-to-close-white-house-press-room-because-the-media-is-corrupt/

– The incendiary NRA commentary of former St. Louisan and conservative radio host Dana Loesch saying liberals “use their media to assassinate real news” leading to a “violence of lies” that needs to be combated with “the clenched fists of truth.” https://www.youtube.com/watch?v=XtGOQFf9VCE

And that was just last week.

Almost every week of his short presidency Trump has found a way to demean himself and cheapen the presidency.

He has done it when he lies, as with his claim that President Obama tapped Trump Tower. He has done it when he tells the truth, as when he said he was thinking about the Russia investigation when he fired FBI director James B. Comey.

He does it when he calls reliable news organizations such as The New York Times and Washington Post “fake” and then treats conspiracy theorists, such as Alex Jones and Hannity, as reputable.

He does it when he calls the Russia investigation fake news in the face of the unanimous intelligence assessment that Russia interfered in the presidential election to try to help elect Trump, thus subverting the most important quadrennial act of the most important democracy in history.

But Americans need not fear Trump will scare off professional journalists.  The tireless work of the Times, Post and other mainstream media dispels that fear.  Every journalistic instinct is to challenge politicians who abuse power.  Bullies like Trump don’t frighten journalists, they inspire them to dig deeper.

Nor does Trump have power to undermine the constitutional protection that the First Amendment explicitly provides the press.

The First Amendment protection for the press has grown steadily through American history as the Supreme Court has recognized broader and broader protections for all forms of media.

There was a time when newspaper editors criticizing President John Adams were jailed.  When Abraham Lincoln had draft resisters arrested and newspapers censored. When socialist presidential candidate Eugene Debs could be locked up for advocating resistance to the draft during World War I. When burning an American flag could get a protester jailed. When the Nixon administration could try to stop the publication of the Pentagon Papers, the secret history of the Vietnam War. And when Southern segregationists could threaten the national press with expensive libel trials before sympathetic juries to make it too expensive to cover the evils of segregation.

Thanks to the Pentagon Papers decision of 1971, the government can’t stop publication of national security secrets absent “direct, immediate, and irreparable damage to the nation.” Thanks to New York Times v. Sullivan in 1964, politicians’ ability to use libel suits to intimidate the press is mostly a thing of the past.  And there is nothing Trump can do about it because the courts can be counted on to enforce the constitutional standard protecting the press.

President Ronald Reagan is well remembered for speaking eloquently about America as a shining city on the hill. How sad the person elected to protect that shining city has dimmed its bright promise.

I offered a toast to my friends in North Carolina on this 4th of July to be grateful we live in a country that has a free and fearless press.

Tweets, leaks and the truth about Trump

Commentary

by William H. Freivogel

President Donald J. Trump is playing his supporters for patsies. The First Amendment protects Trump’s lies to his Twitter followers, but it also protects the leaked stories that reveal them.

Trump calls the burgeoning investigation of Russia’s interference in the presidential election “fake news” and a “witch hunt,” even as the investigation threatens his presidency.

He calls the Washington Post and New York Times “fake news” organizations, when they are among the nation’s best journalists and have provided the most accurate picture of what is happening in his White House.

Trump calls his trip to the Middle East and Russia a “homerun,” even though he alienated the most important elected leader on the European continent.

A spokeswoman speaks adoringly of a president who has “a magnetic personality….brilliant with a great sense of humor,” while press accounts describe an angry president lashing out at his aides,

Trump brags about draining the swamp while he appoints record numbers of billionaires and Wall Street insiders.

Trump promises health care for everyone but pushes a bill that takes it away from 23 million Americans and gives millionaires $600 billion in tax breaks.

Trump claims he would have won the popular vote if millions of illegal aliens hadn’t voted for Clinton, yet still has nothing to prove it.

Fox News, often Trump’s propaganda arm, discloses the Seth Rich conspiracy theory that the Democratic National Committee staffer was murdered because he – rather than the Russians – leaked the DNC emails to WikiLeaks. Fox eventually retracted the story, but its leading pundit, Sean Hannity, is retracting nothing.

While the Times is disclosing Trump relayed “code word” intelligence to the Russian ambassador in the Oval Office, Breitbart headlines the bogus Seth Rich conspiracy, criticizing “Silence from Establishment Media over Seth Rich WikiLeaks Report.”

Trump says the big story is the leaks to the press, which his Homeland Security chief John Kelly calls “darn close to treason.” But without the leaks Americans wouldn’t know of Trump’s leak to the Russians, or Flynn’s conversations with the Russian ambassador, or Jared Kushner’s attempt to set up a back channel to Putin on Russian diplomatic facilities or Trump’s request of former FBI Director James Comey to ease off the investigation of Flynn.

British Prime Minister Theresa May had every reason last week to be upset that information about the Manchester terrorism attack was leaked to American media, including the New York Times. She is right that British intelligence has to be able to count on American intelligence to protect secrets. Trump’s call for an investigation of the leaks was appropriate.

But America is not Britain. We have the First Amendment and Britain has the Official Secrets Act.

In Britain, the government can stop the media from publishing top secret information. In the United States the government almost never can stop publication.

That is the lesson of the 1971 Pentagon Papers case when President Nixon tried to stop the New York Times’ publication of stories based on the 40-volume secret history of the Vietnam War showing presidents had lied to the American people. Our government can only stop publication where there is “direct, immediate, and irreparable damage to our Nation or its people.”

Presidents have made audacious claims of harm from leaks. Nixon claimed thousands more Americans would be killed in Vietnam. President George W. Bush told Times’ editors in the White House that the blood would be on their hands if they disclosed that the National Security Agency was tapping Americans’ conversations without a warrant. President Barack Obama’s administration claimed NSA meta-data collection revealed by Edward Snowden was instrumental in combating 50-plus terrorism attacks.

None of those things happened. Nixon’s solicitor general, Erwin Griswold, admitted later that the Pentagon Papers harmed no one. No terrorist attacks are linked to the revelation of the Bush era wiretaps. And close analysis showed the NSA programs revealed by Snowden had not thwarted terrorist attacks.

Rather than causing harm, these disclosures helped the nation come to grips with the mistakes of the Vietnam War and the excesses of government surveillance.

This isn’t to say that journalists should disclose every secret. Reputable news organizations like the Times and Post contact top government officials before publication and withhold details that could pose harm. But the final decision on publication must remain with the editors, not the officials. That’s what the First Amendment commands.

What the First Amendment cannot command is that our public officials or our media always tell the truth.

Breitbart and Hannity can claim without proof that Seth Rich was murdered for supposedly providing the hacked DNC emails to WikiLeaks. It’s up to the much-maligned mainstream media (MSM) and the people to hold up those claims to the facts and the unanimous judgment of Western intelligence that it was the Russians who provided the hacked information. There is no more evidence of a Democrat assassin than there is of those fraudulent voters in the last election or of President Obama ordering Trump Tower tapped or of Hillary Clinton’s mythical child sex ring at Comet Pizza.   http://www.billofrights225.com/the-presss-identity-crisis/

Trump can claim the Times, Post and other reputable media are purveyors of Fake News. It’s his First Amendment right. But when asked for proof, the White House produces only a couple of quickly corrected reportorial errors on the Martin Luther King bust and Trump’s earpiece for listening to a translation. The substantive disclosures reported by the Times, Post and others have not been rebutted.

Ironically, Trump is almost as likely commit truth in his Twitter outbursts as to lie. He acknowledged thinking about the Russia investigation at the time he fired Comey – an act that could be part of a case of obstruction of justice. No longer does there have to be evidence of Trump collusion with the Russians in the election espionage. It’s enough to prove Trump tried to quash the Russia investigation. No one proved Nixon knew of the Watergate burglary, just that he covered up.

Congress, the professional press and Special Counsel Robert Mueller have many months of important work ahead to find the facts and determine if crimes or impeachable offenses were committed. The final verdict, however, will rest with the people whom the president is playing for patsies.

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

Media and courts failed on Ferguson

The Ferguson story of racial inequality in St. Louis and the nation was largely ignored by the media and judicial system before Michael Brown was killed in 2014. And the Missouri Supreme Court has done little to impose reform since then.

That was the consensus of lawyers, journalists and community activists who came together Sept. 14 to talk about social media and the Pulitzer Prize tradition. The panel at Saint Louis University Law School was part of the two-day Millstone lecture series focusing on the social justice tradition of the Pulitzer Prizes during the prizes’ 100th anniversary. The lecture series honors the late James C. Millstone, a senior news editor of the St. Louis Post-Dispatch and mentor of a generation of reporters before his death in 1992.

Kevin Horrigan, the Post-Dispatch’s deputy editorial editor and a Pulitzer finalist for his work on Ferguson, said he regretted how late the media were to the story.

“One of my big regrets is that we as a newspaper didn’t become continually and consistently engaged in the Ferguson story before Ferguson happened…. This problem is not new, it’s decades old. It is a fundamental and tragic missed opportunity for the Post-Dispatch…. We got pieces of it along the way. Jeremy (Kohler) wrote some terrific stories about cops floating from jurisdiction to jurisdiction. We’ve written about fire districts. We wrote editorials about restrictive covenants. But we never engaged on a persistent, crusading aspect of this story until post-Ferguson. And that’s not really in the Pulitzer tradition. The Pulitzer Tradition was to crusade against injustices. We missed it, we let it go…. And the sad fact is that we are less likely because of economic forces to be able to do the sort of loud, persistent and relentless reporting on this story that it deserves.”

Kohler, an investigative reporter at the Post-Dispatch, pointed out that he and others had written stories of police and court corruption in the years before the death of Michael Brown on Aug. 9, 2014. There were stories about the mishandling of rape cases and police who moved from municipality to municipality. But he agreed ArchCity Defenders was first to the story of the municipal court injustices that wrecked peoples lives.

Thomas Harvey, director of ArchCity, said the Ferguson story writ large was a “story that its been ongoing in America since its inception. It is a story we have largely sought to ignore. It is a story that that any reporter, any person, any lawyer, any law student could have just walked out to a court or a shelter or a jail and heard about any day…. And that is a story of the way the legal system systematically deprives mostly African-American…of their civil rights, creates and exacerbates poverty…. We see the results of these intentional acts right here in our back yard and we have failed to do anything about it.”

It’s a story about “folks that were stopped by one of the 67 police departments in the region, went to one of our 81 courts in the region…….were told that if they didn’t come back with the money they owed they would be arrested and jailed….They are arrested, they are jailed, they are told that to buy their freedom they’ve got to come up with the money that everyone knows they don’t have or they can’t get out. And then they call their family members and their friends and they say can you give me money….so i can get out of this cage and get back to my children.”

Families “scrape together every penny they had and try to get their loved one out of jail…then they were told at that moment that they were wanted in another town so instead of being free they were moved from one cage to another cage….. Five people in those jails have hanged themselves….”

Hand in the cookie jar

The journalists and lawyers on the panel agreed that the Missouri Supreme Court had failed to make meaningful reforms.

Horrigan said, “since the death of Michael Brown…there has been no major permanent change in St. Louis municipal courts. There have been some cosmetic changes. But the state Supreme Court has not done what it logically and morally ought to do which is to dissolve all 81 municipal courts and put them under the auspices of the county circuit court. And why is that – because there are entrenched interests, the traffic bar, the municipal court bar.”

Kohler agreed. “The Supreme Court has not done anything to change. The judges themselves, the courts themselves, the police departments themselves have been shamed temporarily…but there is not structure in place to make that permanent.”

St. Louis is a “frustrating place” for reform, he said. “St. Louis is not the kind of place that likes to admit that it did something wrong. It doesn’t seem to get embarrassed by itself . St. Louis gets stuck with its hand in the cookie jar and it says this is always the way we get cookies.”

Tony Messenger, the Post-Dispatch columnist and former editorial editor who also was a Pulitzer finalist for his work on Ferguson, described the injustice of the Ferguson municipal court that he had witnessed the morning of the panel.   http://www.stltoday.com/news/local/columns/tony-messenger/messenger-ferguson-judge-holds-naval-vet-s-reputation-in-her/article_5fd18b94-c99c-520f-9d17-79c710b3cfa7.html

Stephanie E. Karr, the former Ferguson city attorney who resigned under fire, was back in court serving as city attorney because no successor had been appointed. She insisted that Navy veteran Fred Watson plead guilty to a minor littering charge, claiming that his previous lawyer had agreed to the plea – even though there is no record of that plea agreement.

Watson’s case was highlighted in the Justice Department’s report of unconstitutional police practices in Ferguson. A police officer stopped Watson after he had finished playing basketball and insisted on an identification. When Watson refused, the officer arrested him and threw in other charges, such as the much-abused charge of failure to comply with a police order. Because of the arrest, Watson lost his security clearance and his job in cybersecurity at the National Geospatial-Intelligence Agency.

Has anything changed?

Even though Messenger acknowledges that “a lot hasn’t changed,” his approach to his job has.

“One of the things I tell people is that what Ferguson did to me is that it changed the rest of my career…. A woman wrote me and told me that she is tired of me using the F-word – the F-word is Ferguson. Ferguson, the F-word is not going away…. This is the story I will write about for the rest of my career…. It is going to take us that long: It has been two years and the Supreme Court has done nothing. It’s been two years and we still have 81 municipal courts. It’s been two years and Stephanie Karr is still the prosecutor in Ferguson even though she says she resigned… We haven’t solved this in two years and we’re not going to solve it in four years or five years or 10 years. It’s going to take us 20 years.”

On the hopeful side, Messenger said that “government officials are using the lens of racial equity more than they ever have in this city’s history.”

There was evidence of change from one questioner in the audience – Marie Kenyon, director of the new Peace and Justice Commission for the Archdiocese of St. Louis.

The “Archdiocese hadn’t had a peace and justice commission for 20 years,” she said. “Cardinal Rigali said maybe we don’t need one of those….. It was only after the Ferguson uprising that Archbishop (Robert J.) Carlson said oh, maybe the church better looking into this too…. Now at the chancery, where I work, we’re finally talking about something other than pro-life.”

Nicole Hudson, leader of the Forward Through Ferguson group following up on the 189 calls for action of the Ferguson Commission, said she had seen activists come together in ways that hadn’t happened before Ferguson.

The goal, she said, was “a state of racial equity, which is a state where outcomes are no longer determined by race.” St. Louis is far from that, she added. Infant mortality among blacks has declined in recent years but it is now three times as great as for whites, up from twice as great a few decades ago.

Hudson and Harvey emphasized nothing would have changed without the “uprising in the streets.” But she added that many of the people of Ferguson are “emotionally spent.”

Twitter – the good and bad

Horrigan said “Twitter is as good as the person who tweets. Often it is a source rumor and innuendo and falsehood. The difference between mainstream journalism and social media is standards and my God, if we don’t abide by standards we’re really in trouble.”

Kohler agreed Twitter has its limitations because it is loaded with journalists and activists. He thinks Facebook is a better way to engage the community.

Harvey, though, credited Twitter with enabling him to “get direct access to journalists all of the country….something that couldn’t have happened before Twitter. So there are productive, important ways you get outside of the gatekeeping of decision-making about what is written about your community.”

Hudson said Twitter was “one of the places that keeps me accountable to the unvoiced…. It is really useful tool to stay accountable and keep my mind open.”

Messenger agreed that Twitter “helped drive the narrative of Ferguson,” but added, “It’s a good thing…..I connected with communities and sources I might not have connected with, specifically people of color. I found them on Twitter….I often used Twitter more than personal contact to get to know people and perspectives….

“There was an opportunity for journalists to connect with people that sometimes – to use the metaphor of the ivory tower and the editorial page – that we sometimes were not connecting to.”

European privacy notions wash ashore in U.S.

European countries have long had different notions of privacy than we do in the United States, where privacy has weaker protection than free speech.  But several recent developments are leading European privacy norms to have impact in the United States.

Article 8 of European Convention on Human Rights (ECHR) provides that “everyone has the right to respect for his private and family life, his home and his correspondence.”  Pursuant to this right, in 1995 the European Union adopted its Data Protection Directive, which generally gives individuals the right to control use of information about themselves.  In the United States, while a “right of privacy” has been recognized as an outgrowth of various constitutional provisions, it exists only because of several legislative acts and judicial decisions.

E.U. residents may now enforce privacy in U.S.

In late February, President Obama signed the Judicial Redress Act, Public Law No. 114-126, which allows E.U. residents to enforce their privacy rights in the United States.  The new law was required under the provisions of the “EU-U.S. Privacy Shield” negotiated after the European Court of Human Rights held last year that the prior “safe harbor” scheme for protecting personal data was inadequate under E.U. law.

The European court held that the prior scheme was not compatible with the ECHR, including its failure to provide any remedy when the American government accessed data of Europeans, using techniques such as those revealed by former defense contractor Edward Snowden.  That ruling threatened the European operations of American technology companies whose operations include transfer of data about European residents to servers in the United States. A coalition of technology companies and industry groups called enactment of the bill “a critical step in rebuilding the trust of citizens worldwide in both the U.S. government and our industry.”

The new law will allow the resumption of data exchanges between the United States and Europe.  It requires American companies to commit to “robust” protection of Europeans’ personal data, and requires the companies to respond to complaints of misuse of personal data. The new law also allows residents of E.U. countries and other nations designated by the U.S. Department of Justice to take complaints about private companies’ misuse and insecurity of their private data to the Federal Trade Commission.

Before passing the bill, Senate Republicans added conditions on the Justice Department’s designations of countries that will be covered by the new provisions, such as a requirement that the countries reach data exchange agreements with the United States that do not “materially impede the national security interests of the United States.”  The new law also requires that designated countries provide reciprocal privacy rights to American citizens.

The statute also establishes an ombudsman to field complaints over government access to personal data.  FTC and ombudsman decisions may be appealed to federal court.

Americans may already file such suits over misuse of personal data under the federal Privacy Act.  But most of the lawsuits filed over Snowden’s revelations on behalf of United States citizens have not been successful.

When signing the bill, President Obama said that the new law “makes sure that everybody’s data is protected in the strongest possible way with our privacy laws — not only American citizens, but also foreign citizens.”

Google gives in, somewhat, on the right to be forgotten

One way that Europe has expressed its notions of privacy is with the “right to be forgotten,” the idea that individuals should be able to control what historical information can be found about them online.  The European Court of Human Rights established the right in a decision involving a Spanish lawyer who sought to repress a legal notice about the tax foreclosure sale of an apartment he owned with his ex-wife.

The court held in 2014 that while the information could remain in the online archive of the newspaper that published the notice, Google could be forced to remove links from its search results.  The ruling led Google, Bing and other search web sites to establish methods for E.U. residents to request removal of links to personal information that is “inadequate, irrelevant or no longer relevant, or excessive.”

But search companies have insisted that the removal from search results should be limited to their European domains, such as google.es or bing.co.uk, with the links remaining in search results on non-European domains, including the main .com domains.

While these domains are directed at non-European nations, the sites can be accessed from within Europe.  This led France privacy regulators to demand that the links be removed from non-European sites as well.  The sites resisted this demand, but in early March Google announced that it would extend de-listings to its non-European domains when the sites are accessed from the individual European country of the individual who requested the listing, using geolocation techniques.  The links will remain in the results for users outside that country accessing the non-European domains.

In a blog post announcing the change, Google global privacy counsel Peter Fleischer wrote, “We believe that this additional layer of delisting enables us to provide the enhanced protections that European regulators ask us for, while also upholding the rights of people in other countries to access lawfully published information.”

Privacy regulators of France and other E.U. nations told Bloomberg BNA that they were evaluating Google’s new plan.  But some observers indicated that the regulators were likely to accept the geolocation method only as an interim step towards total removal of the material from all search sites, accessed from anywhere around the world.

This prediction was reinforced in late March when the French agency that oversees data privacy issued a €100,000 ($112,000) fine against Google for failing to apply the “right to be forgotten” link removal requests globally.  Google announced that it would appeal.

Court isn’t crazy about Prince challenge to dancing baby

The 9th U.S. Circuit Court of Appeals in California isn’t crazy over Universal Music’s attempts to take down a YouTube video featuring a toddler dancing to the song “Let’s Go Crazy” by Prince.

In a September ruling, it agreed with a district judge who had held copyright owners must consider fair use before issuing takedown notices under the Digital Millennium Copyright Act (DMCA).

Fair use is a provision of the copyright statute which allows for use of a copyrighted work under certain circumstances that have negligible impact on the market for the work. The statute lays out four factors for a determination of fair use: the purpose and character of the use; the nature of the work used; the account of the work used; and the effect on the work’s value.

On Feb. 7, 2007, Stephanie Lenz posted to YouTube a 29-second video of her children running and dancing in her kitchen as “Let’s Go Crazy” played in the background. Most of the video, which is available at https://youtu.be/N1KfJHFWlhQ, focuses on the younger child, leading it to be called the “dancing baby” video.

Universal Music, which was authorized by Prince to administer the rights to the song, discovered the video through its routine monitoring of YouTube for material infringing its copyrights, and sent a notice to YouTube under DMCA, seeking that the “dancing baby” video be removed.

Under DMCA, web sites such as YouTube that allow posts and contributions by users can avoid liability for infringement for user contributions if the site follows the DMCA process for copyright owners to request removal of infringing material. Under this process, the web site must “expeditiously” remove or disable access to the material and inform the poster, who can then challenge the removal. Upon receipt of such a challenge by the poster – known as a counter-notice – the website must restore the material unless the copyright holder files suit against the poster.

Universal’s takedown notice for the dancing baby video was one of 200 the company sent to YouTube for alleged infringements. YouTube removed the video on June 5, 2007, and informed Lenz of the removal. After Lenz objected, Universal reiterated its position that the video infringed on the song’s copyright. Lenz sent a second objection on June 27, which led YouTube to restore the video.

She also filed suit against Universal, claiming that its takedown notice to YouTube was improper because it did not account for fair use.

The district court denied Universal’s motion to dismiss the case in 2008. After discovery, both parties moved for summary judgment in the case, arguing that no trial was necessary in order to resolve the case. But the federal district court denied both motions, which would allow the case to proceed to trial. Both parties then appealed to the 9th Circuit.

The appeals court’s decision in September agreed that the case couldn’t be decided on summary judgment without a trial.  It also held that copyright rights holders must consider fair use before issuing DMCA takedown notices.

The court’s decision, written by Circuit Judge Richard C. Tallman for himself and Circuit Judge Mary H. Murguia, dwelled on a provision of the law which requires a DMCA takedown notification to include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The court said that language included a requirement that the use of the copyrighted work be evaluated as fair use before the takedown notice is sent.  In other words, the copyright holder has to determine before the notice whether fair use is a use “authorized by … the law.”

The appeals court held that it was, affirming the district court and allowing the suit to proceed to trial. The court also held that Lenz need not show actual financial damages to proceed with her lawsuit.

In addition, the appeals court held that jury must determine whether Universal’s procedures before issuing the DMCA takedown notice were adequate to form a good faith belief that Lenz’s video infringed on the “Let’s Go Crazy” copyright.

If a jury finds that Universal had a good faith belief that the video infringed the copyright, the appellate court held, the company would not be liable for any misrepresentation in the takedown notice. The court added that “a copyright holder’s consideration of fair use need not be searching or intensive” in order to avoid this liability, noting that it may be possible to use computer algorithms, combined with human review, to conduct this evaluation.

Circuit Judge Milan D. Smith, Jr. dissented in part, disagreeing with the majority’s holding that the statute’s prohibition against misrepresentation in DMCA takedown notices required a prior fair use analysis by the copyright owner. But he otherwise concurred with the majority, and in the result.

After the decision of the three-judge panel of the 9th Circuit, the Electronic Frontier Foundation, which represents Lenz in the case, sought en banc reargument of the case before a larger panel of the Court of Appeals.  EEF argued that the appellate court should have granted summary judgment to Lenz – in other words, given Lenz the victory without a trial. Universal responded that the appeals court should not have heard the appeal in the first place.

If the 9th Circuit declines to rehear the case and its prior opinion holds, the case would go to trial before a jury. If a jury finds that Universal had a good faith belief that the video infringed the copyright, the company would not be liable for any misrepresentation in the takedown notice.

So the case of the dancing baby video may continue to trial, unless a settlement is reached. Copyright owners are put on notice that they must consider fair use before issuing takedown notices for alleged infringement online. Posters to the web are given more protection from removal of their posted material if it is protected by fair use. As babies can “go crazy” to a song in the background, and have the video posted online.

The ruling, Lenz v. Universal Music Corp., is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

 

Author’s note: Eric P. Robinson is co-director of the Press Law and Democracy Project at Louisiana State University and of counsel to the First Amendment law firm The Counts Law Group.