Tag Archives: First Amendment

Anonymous poster must be ID’d

The Illinois Supreme Court ruled this week that a northern Illinois public official must be told the name of an anonymous poster to a newspaper website who likened the politician to former Penn State football coach Jerry Sandusky, the child sex abuser.

The decision means that the anonymous poster cannot dodge a libel suit by hiding behind anonymity.

The Illinois high court ruled unanimously in favor of Stephenson County Board Chairman Bill Hadley, who has been demanding to know the identity of the poster for four years. Under the decision, Comcast, which provides the poster with internet service, would be required to turn over the poster’s identity.

The comment from “Fuboy” was posted on a December 2011 article in the Freeport Journal Standard website about Hadley’s decision to run for the County Board: “Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire (Elementary School) from his front door.” The comment was an apparent reference to the former Penn State coach who was convicted of child sex abuse in 2012.

Because of a federal law – Section 230 of the Communications Decency Act – Hadley can’t sue the newspaper for the potentially libelous comment by Fuboy. The law gives websites legal immunity for the content of third party postings – like the one from Fuboy. So Hadley’s only alternative is to sue the poster and to do that he needs to know the poster’s identity.

The Illinois Supreme Court acknowledged that First Amendment issues are involved because anonymous speech is constitutionally protected. But it said that if Hadley could obtain Fuboy’s identity if he could present enough evidence to “establish the alleged defamatory statements are not constitutionally protected….

“Once a plaintiff establishes a prima facie case for defamation… a potential defendant has no first amendment right to balance against the plaintiff’s right to redress because there is no first amendment right to defame,” it wrote.

Even though Fuboy’s statement was one of opinion, it expressed allegations of facts that, if true, would constitute a crime. When opinions contain factual claims, they can be libelous.

The attorney for Fuboy said there may be an appeal to the U.S. Supreme Court, which could put off his identification during the appeal.

Court opinion

http://illinoiscourts.gov/Opinions/SupremeCourt/2015/118000.pdf

story:

http://www.sj-r.com/article/20150618/NEWS/150619478

St. Louis’ forgotten espionage case

Suppose you are an investigative journalist and you have a confidential source who divulges state secrets that you print. The government hunts down the leaker, arrests this person and charges him with a crime. You, the journalist, are the only person who can verify if the leak was actually this person or not. You are subpoenaed, but you won’t give up the name of your confidential source.

Eventually, the government gives up trying to make you speak and tries the leaker without your testimony. The government convicts the person on circumstantial evidence. Prosecutors claim this a victory for the government. Since you never surrendered your source, journalists claim it as a victory as well.

Except for one thing: The person convicted wasn’t your source.

As a journalist, do you have a responsibility to exonerate an innocent man, even if by doing so you expose the true source you are protecting? Or do you remain silent, knowing that you did your job.

Now consider this: The hypothetical may be true.

Former CIA agent Jeffrey Sterling, a Missourian who graduated from Millikin University and Washington University Law School,  recently was sentenced to 42 months for violating multiple counts of the Espionage Act (story).

The conviction was obtained without the testimony of James Risen, a New York Times reporter. Sterling was convicted as Risen’s source in a chapter of the book State Of War, which described a botched CIA attempt to hinder Iran’s nuclear program.  The plot involved a Russian scientist, code named Merlin, giving fake nuclear plans to the Iranians.

The government pinned its investigation on Sterling, who had previously brought a race discrimination claim against the CIA.   Sterling is black and the CIA overwhelmingly white. Sterling also talked to a Senate intelligence hearing about his concerns about the Iranian project.

Sterling fits a mold – disgruntled employee out to get revenge on the organization he thinks mistreated him. One of his lawyers even suggested he’d go public with his concerns. And Sterling had multiple opportunities to talk with Risen. Risen wrote a story about Sterling’s EEOC case in the New York Times.

Sterling has steadfastly denied he was the source for Risen’s chapter. He did not take the stand to defend himself in the trial because his lawyer thought the government had not made its case. But Sterling’s case was tried in Alexandria, Virginia, where many of the people have connections to government or government contracts.

Also, on a case that started as a racial discrimination case, no African Americans served on the jury. In fact, throughout the trial, the only blacks in the courtroom were Sterling and two employees.  The venue was perfect for the government, which secured a sentence of guilty on circumstantial evidence.

Sterling has always denied being the source. In 2012 he went on record speaking to students at Millikin University.  He said he was not a fan of Risen’s silence – even though that silence was viewed in most of the media as intended to protect Sterling.

“I am innocent,” he said. Not only that, but Sterling was quick to point out that his wife was not a fan of Risen’s either.

“I wouldn’t want to put those two in a room together,” Sterling said. “She’s not happy with him.”

Sterling didn’t realize how desperately the CIA would pursue this case and how much the deck would be stacked against him. And the only person who could clear him – Risen – couldn’t.

“One thing that the trial showed me that I really didn’t realize, was that the moment I started complaining about discrimination, a sort of machine came together at the CIA and kept me in its sights from beginning to end,” Sterling wrote after the trial. “Funny how only through the trial I learned that every step of the way I took to legally stand up for myself, there was an Agency person there (the House Committee, the Senate Committee, etc.). “I could go on, but I shouldn’t…just makes my frustration grow. Particularly with regard to a certain gentleman (Risen) who I assume either is mutedly troubled or doesn’t give a damn.”

Sterling was convicted on metadata. There was no hard evidence that convicted him, only circumstantial evidence, made stronger by the theatrics of CIA officials testifying behind screens and an appearance by Condoleeza Rice. Many doubted the government’s ability to prosecute Sterling without Risen. Not only did the government manage to prosecute the case, it got a guilty verdict without Risen.

Sterling was sentenced to Federal prison, claiming to be an innocent man. He felt persecuted by the CIA and abandoned by those who could help but didn’t, especially many in the black community who failed to step up and help in the early days of the case.

“I talked with a lot of people,” he said in 2014. “I talked to the NAACP, the Rainbow Push Coalition, congressmen, senators, you name it. No one wanted to get involved in this.”

In fact, one person, with considerable political influence, a staffer for Missouri’s Lacy Clay actually advised Sterling to move to Canada. Sterling refused.

“I couldn’t do that,” Sterling said. “I couldn’t run.”

Sterling is justifiably angry with is the press, especially mainstream Washington press. For the press, the story was strictly about Risen’s battle with the government and First Amendment issues. The media never questioned Sterling’s guilt or innocence.

“At the trial, you could count the number of media outlets there on two hands and have fingers left over,” said Norman Solomon, executive director of the Institute of Public Accuracy. “Once the Risen case was over, the media lost interest.”

Press members assumed Sterling was Risen’s source. They didn’t look at staff members of the Senate Intelligence committee (where the FBI was looking until the CIA changed its focus to Sterling) to see what they had to say. They didn’t follow up on Risen’s original story about Operation Merlin. And even though Risen said multiple times on the record that he had multiple sources for the story, some of whom couldn’t have been Sterling, the press never followed these leads. Rather, their actions were more in line with Randal Eliason, a Washington, D.C., lawyer and an American University faculty member.

I have no idea where the truth lies concerning Operation Merlin and Im certainly no apologist for the excesses of the CIA during the war on terror. But given the choice between believing Sterlings account (as reflected in Risens book) and that of the career CIA people who testified at his trial, I see no particular reason to believe Sterling. (Eliason story)

Eliason is an attorney who could easily think a reporter such as Risen would rely on one source for a story as big as Operation Merlin. The press should know that Risen wouldn’t take a story like that to press without multiple sources. The press should not have assumed Sterling was Risen’s main source for the story.

Instead, the press concentrated on Risen’s struggle against the government and his First Amendment stand. The press turned Risen into a hero. The press concentrated on the so called war between Obama and Whistleblowers (without paying any attention to the whistleblower in Sterling’s case) and the press concentrated on David Petraeus’s sentence compared to those of other leakers, including Sterling. But the press never did its job.

“Sterling could be innocent,” said Marcy Wheeler, who blogs at emptywheel.net, had a seminal story about Sterling in the Nation before the trial (story here) and was present through most of the trial. “He could very easily have steered clear of any confidential sources and pointed Risen in the direction of the story without giving away any details at all.”

During its closing arguments, the defense made just that claim, pointing the finger at defense intelligence staffers Vicki Divoll and Bill Duhnke. Divoll was used by Risen in another chapter of Risen’s book but testified she wasn’t the source. Duhnke never testified.

The defense painted a picture of a journalist doing his job, getting a piece of information and using multiple sources to nail down the (story). It makes more sense than Jeffrey Sterling as the sole source of Risen’s chapter. But the national press never picked up on this story. As a group, the press stayed on the Risen as hero narrative, leaving Sterling alone.

“I’m just a pawn,” Sterling said multiple times. “To the press, I’m nothing. This is all about James Risen to them.

“I’m still in shock that I may go to prison for something that I didn’t do.”

Sterling goes to jail and looks to Risen for the words that would at least make him feel better. Risen is hailed as a First Amendment hero, standing up for reporter’s privilege.  Ethically, Risen can’t say anything about Sterling without jeopardizing his true source, if it isn’t Sterling. But the press, the people who could have truly covered the Sterling case, avoided it. They took the easy way out while lauding a reporter who told an important story and made a stand against the government.  Sterling, who actually did the right things as a government employee by going through proper channels to tell of a mistake, heads to prison.

Risen didn’t fail Sterling – the rest of the press did.

Sterling goes to prison for 42 months, the longest term of any person charged under the Espionage Act during Barack Obama’s presidency. If he was guilty, it’s a fair term. If he was innocent…

Scott Lambert is a journalism/English professor at Millikin University. 

Charlie Hebdo haunts the media

When Islamist gunmen killed 10 journalists and two policemen in January at the Paris office of Charlie Hebdo, the satirical magazine firebombed in 2011 for its irreverent cartoons of the prophet Muhammad, media reaction to the massacre immediately after was best summed up by the headline of an article in Reason magazine: “I’m all for free speech and murder is wrong, but…”

In much of the media the “but” trumped admiration and respect for the slain journalists’ insistence that religions, along with other institutions and ideas, can and should be mocked and laughed at.

Now, five months and three Charlie Hebdo-related events later, the media remain as divided about the meaning of the slaughter in Paris as they were in January. Too, media are as uncomfortable in dealing with and justifying their coverage and stance expressed in their reports and analyses.

Typical of the hostility toward Hebdo and its band of satirists were the sentiments of National Public Radio’s former ombudsman Edward Schumacher-Matos in an interview with the Washington Examiner. He labeled the magazine’s Muhammad cartoons “intentionally provocative form of hate speech that are undeserving of protection,” and slammed First Amendment “fundamentalists” who mistakenly suggest that the United States has “absolute freedom of the press.”

He added that he didn’t know “if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution,” unaware that there is no hate speech exception to the First Amendment. As Eugene Volokh, professor at the University of California at Los Angeles School of Law pointed out on his blog (the Volokh Conspiracy) in the Washington Post: “hateful ideas are as protected under the First Amendment as other ideas.”

There are narrow exceptions, which primarily relate to speech leading to immediate incitement or creating a hostile workplace environment, but “hate speech” has no “fixed legal meaning under U.S. law,” Volokh notes.

None of that stopped a barrage of media attacks on Hebdo, calling the killing of its staff members not excusable or justifiable, but perhaps quite “understandable.” As blogger Kitty Striker wrote, Hebdo’s “racist, homophobic language is not satire. I think it’s abusive, and I think it punches down, harshly and often.”

Facts rarely interfered with the hits on Hebdo. A piece on the Daily Beast pointed out what French scholars discovered; namely that “in the last decade just seven of Charlie Hebdo’s 523 covers dealt with Islam.” And as one of the magazine’s supporters, Dominique Sopo, Togolese president of SOS-Racism (France’s most celebrated anti-racism organization) tried to explain: “Every week, half of Charlie Hebdo was against racism, against anti-Semitism, against anti-Muslim hatred.”

What the magazine was really about was lost in the hullaballoo and outrage over the Muhammad cartoons, or it was dismissed, as on the left-wing website Counterpunch as an “extended adolescent revolt.”

Not surprisingly, among U.S. media, the New York Times, CNN, NBC, MSNBC and the Associated Press refused to publish any of the Muhammad cartoons. The Times said it does not publish materials that “offend the religious sensibilities” of its readers, but did not inform them which of their sensibilities, if any, it was OK to offend.

Media organizations publishing one or several of the cartoons included the Wall Street Journal, the Washington Post, the Los Angeles Times, Fox News, Bloomberg, HuffingtonPost, Daily Beast and the New York Post.

Our paper of record is unwilling or unable to understand what M.G. Oprea, writing in the Federalist magazine, understands so well: “Freedom of expression is worthless if it excludes speech that offends someone.”

Coverage of Charlie Hebdo, Michael Cavna observed in the Washington Post, “pulled and polarized media on opposite sides of a kinetic dividing line.” Five months after the slaughter in Paris, posthumous publication of a book by Charlie Hebdo’s editor, exposed that dividing line once again.

On April 16 the New York Times ran a story on its website about “Open Letter to the Fraudsters of Islamophobia Who Play Into Racists’ Hands,” Stephane Charbonnier’s book (only in French, so far) and headlined the story “Book by Slain Charlie Hebdo Editor Argues Islam Is not Exempt From Ridicule.”

The headline apparently did not sit well with some editors, fearful of giving offense, so the headline of the same story in next day’s print edition read: “With Posthumous Book, Charlie Hebdo Editor Proves Defiant in Death.”  Excerpts from the book, which ran in the weekly newsmagazine L ‘Obs, show him more thoughtful than defiant: “The problem is neither the Quran nor the Bible,” he wrote, “sleep-inducing, incoherent and badly written novels. The problem is the faithful, who read the holy books like instructions for assembling Ikea shelves.”

The media, in America and abroad, chose to ignore his broadside at all fundamentalist faith and blasted away at his attacks on those of his targets who misunderstood or deliberately misstated the magazine’s satire: “Charlie Hebdo editor attacks liberals from the grave,” shouted London’s Times. Britain’s Telegraph saw the book as a “posthumous attack on left-wing French intellectuals.” And our own NPR saw “Islamophobia” as the book’s main target of attack.

Much of the coverage ignored one target, the one exposed by Matt Welch on April 17 in Reason: “He (Charbonnier) pillories the unquestioning use of the term ‘Islamophobia’ by some journalists either out of laziness or commercial interest.”  The Washington Post stood out for also exploring the book’s condemnation of “journalists, politicians and others, whom he accused of using fear of Islam for their own purposes.”  The paper earned plaudits for quoting Chardonnier’s words: “The problem is not religions, but those who practice and distort them.”

Reading the excerpts available might have brought journalists closer to understanding what Hebdo’s satire, following is about. Charlie Hebdo was seen in France as  “the scourge of post-fascist (French) political party Front National, the enemy of Papists, cheerful anti-racist activist, fellow-traveler of the French Communist party, staunch agitator for Palestine…” as readers of the publication understand and informed those journalists (as those from the Daily Beast) willing to listen.

Most media did not bother to reach for and attain such an understanding. So when PEN, the international organization of writers, chose to grant its “Freedom of Expression Courage Award” to Charlie Hebdo (in New York on May 5) the media focused its attention on the dissenters within PEN.

“A Literary Honoree Splits Allies,” the New York Times proclaimed, unwilling to decide whether or not the magazine was “a misunderstood honoree, or perhaps just a bigoted outlet.” The “bigoted outlet” fans made most of the noise and so got most of the attention.

Publications printed their protests and outcries, which made much better copy than the calm defenses of the magazine and its contributions to social and political satire.

The letter signed initially by 145 PEN members claimed that Charlie Hebdo publishes “selectively offensive material that intensifies the anti-Islam…anti-Arab sentiments already prevalent in the Western world.”

Individual members were even nastier. Novelist Francine Prose called Hebdo’s cartoons “gleefully racist” and suggested that they “conveniently feed into a larger political narrative of white Europeans killed by Muslim extremists, which is not the case.” Only a few (the Daily Beast standing tall among them) dared to point out that the families of the 10 Hebdo staffers and two police officers as well as the four customers assassinated in a kosher market, might beg to differ.

Prose continued her assault on the victims by claiming that she saw no difference in Joseph Goebbels’ anti-Semitic propaganda “spewing eliminationist rhetoric” and Hebdo’s “mocking religious radicals.” Similarly, novelist Deborah Eisenberg asked PEN if it would “grant the award retroactively to Julius Streicher’s Der Stuermer?” (The Nazi magazine that featured cartoons- of Jews as blood-sucking and blond –maiden- chasing sub-humans.)

No traditional media outlet asked viewers or readers to compare cartoons from that publication with any from Charlie Hebdo, which The New Yorker described as “blatantly, roughly sexual and not designed to endear them to Jews or Christians,” but not as viscerally racist or dehumanizing. Hebdo’s cartoons, cited by the magazine, showed the Pope kissing a member of the Vatican guard and an Orthodox Jew kissing a Nazi soldier.

Survivor of the Paris massacre, Hebdo’s film critic Jean-Baptiste Thoret, who missed the January 7 editorial meeting because he overslept, was invited to the PEN ceremony. When confronted with the comments of some dissenting PEN members and their comparisons of his publication’s cartoons to Nazi propaganda, shrugged and said: “They don’t really know what they’re talking about.”

It surprised few, then, that the May 2 attempted attack on an exhibit of a “Draw Muhammad” contest in Garland, Texas,  received the usual and by now tired same-old coverage. The two gunmen, killed by a local traffic officer wanted to shout “The prophet is avenged,” as one killer did in Paris over the body of a policeman, but their path to the attack was by now an old story. The mother of one slain gunman said her son “was raised in a normal American fashion.”

A few media blamed the event’s organizer, blogger Pamela Geller, for exercising “bad judgment” and inviting a violent response. And that’s what had already been said back in 2011, when Islamists firebombed the offices of Charlie Hebdo.

The botched shooting will, appropriately enough, be used by Abilene Christian University’s journalism department as a teaching tool, KTXS-TV in Abilene reported in a brief bulletin.

There is much to find out about the media’s unease with the meaning of free speech — specifically which restrictions or constraints on the First Amendment the media accept or reject.

The media might want to reflect on what it means that nine years ago six in 10 Americans felt it was irresponsible for newspapers to run cartoons depicting the prophet Muhammad, but  that today six in 10 respondents say they are OK with papers doing just that.

The media might want to ask themselves if they are willing to “accept a gag order by a religion that can’t stand criticism or mockery.”

And they might want to ask themselves if the “negative liberty” granted by the First Amendment allows exceptions for legally irrelevant categories such as “bad taste” or “bad judgment.”

And finally, they might want to think about how their answers, and their conduct based on those answers, touch on the survival of an open and free society and laws designed to keep it open and free.

Michel Martin urges journalists to tell the uncomfortable truth

“Journalism matters because we have the responsibility to inform readers of the truth of their world, even when they don’t want us to.”

That was the message Michel Martin, host of NPR’s “Tell Me More,” and journalist of more than 25 years gave guests at Gateway Journalism Review’s First Amendment Celebration March 19.

Drawing journalists and friends of news from around the region, the event took place at the Edward Jones headquarters in Des Peres, Mo.

“We are following the story of ourselves as a nation,” Martin said of the media’s Ferguson coverage. Just as we as a people are imperfect, journalism should “hold a mirror to both flaws and beauty,” she said.

Martin said she didn’t want to give too many opinions on the shooting of Michael Brown, because she would be moderating a Ferguson community discussion again shortly and wanted to retain some neutrality.

She left the opinion to the follow-up panel. The panel consisted of Alvin A. Reid, a weekly panelist on KETC-PBS’s “Donnybrook,” and St. Louis Magazine contributor; Patrick Gauen, who has been the police and court editor at the St. Louis Post-Dispatch since 2000, and a weekly columnist since 1989; Tim Eby, who has been in public radio for three decades and is general manager of St. Louis Public Radio; and Craig Cheatham who has worked in broadcast journalism for 30 years. Cheatam filed numerous in-depth reports on Ferguson and led KMOV’s analysis of the Grand Jury documents.

Sorting out facts

GJR’s publisher, William Freivogel, introduced the panel discussion by asking two questions:

“How did we allow this mantra to get started — ‘Hands Up, Don’t Shoot’ — when the Justice Department has refuted that it happened?” he asked.  And “how have we allowed pervasive racism to exist so long right under our noses?”

While Gauen said the facts of the case contradicted “the narrative,” he thought Brown has become symbolic for pervasive – and real – victimization around the country.

Reid wasn’t so sure the Justice Department report fully refuted the narrative. “I am convinced we still don’t know what happened on that street in Ferguson.”

Gauen said there was “an inability to tell a balanced story on all sides.” In contrast to 50 years ago, when there were no protester accounts, now there were few police viewpoints. The police had less control of the information surrounding this case than they typically do, he said. Social media contributed to them losing the shape of the narrative.

Touching on citizen journalists’ role in Ferguson, Reid said their involvement has been “problematic.” Their contributions were marred through their antagonism of the police, he said.

“I felt very early there was a false narrative going on,” said Cheatham. “There is a difference between peaceful and non-violent protest. I reported on how some of the police went down and were scared by those protests. I was tagged as a ‘pro-cop’ reporter, and in that environment, you don’t want to get tagged as pro-anything.”

He added that he thought the media did a poor job of covering the protesters’ side early on, when they were too busy instead staying on top of the story as it broke.

“People want their own facts,” Cheatam later said. Journalists shouldn’t feel pressure to cater to them.

Looking at the big picture, “the region has permanently changed,” according to Eby. “There are a lot of people who just want things to go back to the way they were before Aug. 9. I don’t think that’s possible,” he said. It is now journalists’ job to bring the conversation the case started to the forefront, he added.

‘Tell all stories’

Before moderating their panel, Martin talked about the Children’s Crusade, the 1963 civil rights demonstration by hundreds of Birmingham school students in Alabama. Local newspapers agreed not to put the confrontation on their front pages, even though the national papers did – it was “too explosive,” Martin said. There were also no quotes from the demonstrators.

The Birmingham papers said they didn’t know how to cover the story – and wouldn’t know who to call for quotes from the protestors’ side. “I’m very confident that we are doing better than that,” Martin said. “But are we doing the best we can do? How deep are our rolodexes?”

Martin used this question to pivot to underrepresented groups within journalism, pointing out large gender and race disparities in bylines nationwide. Even the New York Times, under then-editor Jill Abramson, had the fewest female bylines among the 10 biggest news outlets. On network television, most news shows’ guest analysts remain white males.

“Are women of color only capable of talking about what they are, not what they know?” Martin asked.

“We have to do our jobs,” she said – and do them better. Journalism should “tell all stories,” and depict “the world as it is, not as we want it to be. It is the media’s honor, its duty to learn this uncomfortable world as it is, not as it was.” This is important in world of polarized media where you can now “pick your own truth,” she said.

“It’s expensive education,” she concluded, quoting former GJR fundraiser speaker John Seigenthaler, for whom she had earlier asked a moment of silence. “But we’ve tried ignorance so many ways, and it doesn’t work.”

 

 

First Amendment is no refuge for Clippers owner’s remarks

Editor’s note: This is an opinion article from William H. Freivogel, publisher of the Gateway Journalism Review.

Whether viewed from a legal, moral or ethical vantage point, the lifetime ban that NBA commissioner Adam Silver imposed on racist Los Angeles Clippers owner Donald Sterling was just and correct.

After Silver announced the punishment, the Twittersphere exploded with claims that the NBA had violated Sterling’s First Amendment right to free speech.

The problem with that argument is the first word of the First Amendment: Congress. “Congress shall make no law” means the government can’t punish people for their speech. It doesn’t mean a corporation or private groups can’t fire people for saying something stupid and hateful.

Ethicists, who fancy having a corner on the truth, may disagree. Al Tompkins, from the Poynter Institute, was quoted on NPR this week asking, “When does newsworthiness trump privacy?”

There is an easy answer to this naïve rhetorical question: At least since Bill Clinton, and arguably since Justice Louis Brandeis and his law partner Samuel Warren came up with the right to privacy more than a century ago because they were offended by gossip columns about the lavish blue-blood parties thrown by the Warrens.

And all that was long before social media and gossip sites such as TMZ demolished the boundary between private and public. As Silver pointed out, even if Sterling made the comment in a private phone call to his girlfriend, the views are his and are public. And remember, Sterling is a public figure who must realize he sacrifices some of his privacy for his celebrity.

Still, Tompkins asks, “Doesn’t he have the right to say what he believes no matter how reprehensible without fear of someone recording it and putting it online?”

Sure, he has the right to say it. So, too, does the NBA have a right to kick him out for saying it.

Building an ethical argument in favor of protecting Sterling’s privacy is ultimately self-defeating and offensive. In a country tarnished by slavery, segregation and bigotry, can it be possible that ethics requires society to protect a racist behaving like a 21st century plantation owner?

Sterling might be able to assemble some legal arguments challenging the NBA’s attempt to force him to sell the team. But those efforts are likely to be fruitless, because the NBA’s constitution seems to say the league’s decision is final and owners have waived their right to challenge it in court.

The telephone conversation with V. Stiviano may have been recorded illegally if Sterling didn’t consent.

But just as news organizations print documents illegally leaked by Snowden and Assange, they also print newsworthy recordings that may have been illegally taped. In fact, the U.S. Supreme Court ruled there is a First Amendment right to broadcast illegally recorded conversations.

But does this gossip qualify as news, especially when Russia is seizing eastern Ukraine and people are dying in Syria?

The question answers itself. The Sterling comments have been the most-commented-upon news story of the week.

The nation’s ugly racial history has determined that America’s is destined to struggle with race – even if the Supreme Court’s affirmative action decisions show it is tired of the struggle.

One encouraging sign is that society exacted the maximum punishment on Sterling as an automatic reflex, just as it had last week when Nevada rancher and Tea Party “hero” Cliven Bundy started talking about blacks being better off when they were slaves picking cotton.

We sometimes forget how little time separates us from our institutionally racist past. Those now retiring went to kindergarten at the time Brown v. Board of Education was just desegregating the schools. We lived through segregation and remember that most white parents then disapproved of interracial dating and marriage.

It was only 50 years ago that the Civil Right Act forced restaurants and pools and employers to admit blacks. It may take another 50 years – or more – before we can escape the ghosts of Sterling and Bundy.

Embattled L.A. Clippers owner has a right to privacy, too

Editor’s note: This is an opinion article from William A. Babcock, editor of Gateway Journalism Review.

For anyone spending the past few days in a cave, the person in the eye of the latest media storm is Donald Sterling, owner of the NBA’s Los Angeles Clippers.

Sterling ignited the race card, and the media suddenly have diverted their eyes from the Ukraine, a missing airplane and a South Korean ferry. Race is America’s trump card. It’s the nation’s third rail: touch it and you die.

Sterling’s racist comments recently were recorded by his girlfriend, V. Stiviano, and released by TMZ on Saturday. Three days later, NBA commissioner Adam Silver called for NBA owners to force Sterling to sell the Clippers, banned him for life from any association with the league and fined him $2.5 million.

Now Sterling’s remarks were inappropriate, racist, odious, vulgar and hurtful. But they were made in the privacy of his own home, and recorded without his knowledge or consent. So go ahead and throw the first stone. Everyone who has never said something stupid and hurtful in the privacy of his or her own home – everyone who would be comfortable having any and all of his or her utterances broadcast publically in this new-tech world – please stand up.

A truly strange assortment of voices already has been heard on this subject – many speaking out against sanctions against Sterling – and more likely will hit blogs, tweets, newspapers and radio waves in coming days. Rush Limbaugh, Donald Trump, Libertarians, members of the American Civil Liberties Union from the Skokie-march days and a number of First Amendment free-speech advocates all have offered their commentaries. What strange bedfellows they are.

The public and members of the media should speak out against, and chastise, a public figure’s insensitive, unethical remarks, even though such remarks were made in private. But do remarks uttered in private justify Silver leveling such a punishment?

As former African-American NBA star Kareem Abdul-Jabbar wrote earlier this week: “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizens’ privacy in such an un-American way?”

Jeff Jacoby, writing recently in the Boston Globe, pointed out it’s illegal in California to secretly record a private conversation. In a free society, he wrote, “private lives and private thoughts aren’t supposed to be everyone’s business.” But, as Jacoby adds, such intrusions, made possible by modern technology, are eroding this value, and the presumption that what people say in their personal lives will stay personal, is all but gone.

In the 1965 U.S. Supreme Court case Griswold v. Connecticut, William O. Douglas wrote about a “penumbra” right of privacy. Justices Hugo Black and Potter Stewart countered that the Constitution contains no such right.

Today, some notable First Amendment activists who usually side with Douglas on issues of privacy are comfortable supporting the commissioner’s punitive sanctions against Sterling, even though such sanctions would not have been leveled had his privacy not been violated.

Privacy, new technology and the U.S. race card; what a toxic brew. It’s regrettable Silver has drunk so deeply from this draught.

Two wrongs were made: Sterling said something ugly, and these comments were broadcast by the media. But two wrongs don’t mean professional basketball’s commissioner was right in leveling sanctions against the Clippers’ owner. Two wrongs don’t make a right.

When the ends are seen to justify the means, media ethics and media law both suffer. And race once again is able to rear its ugly head.

$25 tickets available for GJR First Amendment celebration featuring Amy Goodman

dn-logoEditor’s note: A related story about this event can be found here.

New $25 tickets are now available for the March 29 First Amendment celebration featuring Amy Goodman, award-winning journalist and host of “Democracy Now!”

The annual event benefiting Gateway Journalism Review will take place at the Edward Jones Headquarters in Des Peres, Mo.

Goodman will speak at 8 p.m. Those who would like to attend the program, but not the full event, can now purchase tickets for just $25.

Details about the event and online ticket sales can be found at http://firstamendmentcelebration.bpt.me. For further information, please email gatewayjr@siu.edu or call (618) 536-3361.

Tickets also can be purchased over the phone.

A review of Goodman’s full biography can be found online at http://www.democracynow.org/about/staff.

Advocates await next big scandal

image-threemonkeysWhen Lisa Rosenberg recently trav­eled to Croatia, the open-government advocate was prepared to debate the appropriateness of campaign-finance disclosure laws in a formerly Commu­nist regime. But she found little need to persuade.

“It was a given that this informa­tion had to be made public,” says Rosen­berg, a government affairs consultant for the Sunlight Foundation, a Washington, D.C., nonprofit that works to enhance government transparency. “They think that’s so important as an anticorrup­tion measure that it didn’t even occur to them in Croatia that this would have to be private.”

Not so in the United States, where transparency advocates are having a tough time gaining access to Much of this new attention is because of the 2010 Citizens United v. Federal Elections Commission case, in which a conservative Supreme Court overturned past precedents and created new First Amendment protections for corporations. While the decision is more well-known for its holding that corpora­tions can spend general treasury funds on election ads, the Supreme Court also ruled that laws requiring donors to file FEC reports – as well as requiring adver­tisements to indicate who paid for them – do not violate the First Amendment rights of speakers.

“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corpora­tions and elected officials accountable for their positions and supporters,” Supreme Court Justice Anthony Kennedy wrote in the majority’s decision in Citizens United. Justice Clarence Thomas was the lone dissenter, citing instances of threats against contributors to hotly contested political campaigns such as Proposition 8 in California to justify the need for donor anonymity.

Despite the Citizens United ruling, the future strength of disclosure and disclaimer laws is threatened.

In the last year, several organizations have filed federal lawsuits to strike down state and federal disclosure statutes as well as FEC disclosure regulations, while the IRS is under assault for scrutinizing whether certain nonprofit corporations were properly classified as non-political, and thus exempt from disclosure laws.

One problem is that it’s too easy to circumvent current disclosure laws and regulations.

Outside spending on elections – money not directly affiliated with a can­didate or political party – has skyrocket­ed. Since the Citizens United decision in 2010, outside spending through Super­PACs and other independent expenditure organizations increased by 245 percent in the presidential elections, 662 percent in House elections and 1,338 percent in Senate elections, according to election-law expert Richard L. Hasen. Some estimates suggest that some 40 percent of this independent money is non-disclosed.

Comedy Central host Stephen Col­bert showed just how easy it is to create a “shell” corporation to funnel non-dis­closed money from donors to advertise­ments. It took attorney and campaign finance reform advocate Trevor Potter just five minutes to show how Colbert could create a SuperPAC that can keep its donors secret and use vague names that don’t give voters a real understanding of who’s behind the ads.

“Various people say, ‘Well, the identity of the group running the ads is disclosed, so what is it you want?’ Well sure, Americans for a Better Tomorrow, Tomorrow (Colbert’s organization) is disclosed as that, but it doesn’t tell you anything,” says Potter, a former FEC commissioner.

Meaningful disclaimers are im­portant for voters, says Susan Lerner, executive director of Common Cause New York.

“I believe that the public is look­ing for signifiers in an overly crowded information marketplace,” Lerner says. “Information regarding the major funders of the communication, depending, of course, on who they are, is a signifier, which the public can use. So if it is advertising that is supporting a particular position regarding the environment, and it’s coming from Exxon Mobil, or GE, or Entergy, or Chesapeake Gas, then I’m going to evaluate it in a different way based on what’s important to me, than a communication which comes from the Sierra Club or the League of Conserva­tion Voters.”

Adam Skaggs, senior counsel at the Brennan Center for Justice at New York University School of Law, says weak dis­closure requirements also leave voters in the dark about key connections between donors and politicians.

“You can wonder in which direction the causal relation is, whether people are giving money to people they agree with or if people are shaped by the money, but I don’t think that the direction really matters,” Skaggs says. “There’s a conversa­tion going on that is really shaping the way that the democratic process works, and that’s information that voters, report­ers and people working at nonprofits should be able to have access to so they can try to help people understand what’s going on.”

But getting these facts into meaning­ful context and into the hands of voters is harder than one might think.

The Sunlight Foundation and the Center for Responsive Politics, two open-government groups based in Washington, D.C., both struggle with inaccurate FEC information, delayed IRS filings, filings that are messy and nonstandardized, and lack of data critical to tracking where money is coming from and going to, including lobbying data.

Sometimes the money is so well hid­den that watchdog groups must rely on accidents to find out where it’s going.

Robert Maguire, researcher at Center for Responsive Politics, says that happened last year, when insurance company Aetna “accidentally” told share­holders about $7 million in donations to the American Action Network and the Chamber of Commerce.

“They were saying that they were supporting health care reform and work­ing with the administration, and at the same time they were giving millions of dollars to organizations that don’t disclose their donors and were pretty viciously attacking anyone who supported reform,” Maguire says.

Advocates see glimmers of hope at the local and state levels where disclosure and disclaimer laws have been expanded. The federal courts also have rejected chal­lenges to disclosure and disclaimer laws thus far. But at the federal level there is little political will to change to the status quo. As Rosenberg points out, what Sun­light, CPR and other organizations are really doing is “laying the groundwork for the next scandal, because that’s when something is going to happen. campaign donations and lobbying activities.