BY PETER SCHEER—Why is it that the First Amendment Coalition, like other organizations that defend freedom of speech, is so often aligned in support of seriously unsavory characters?

Just last week FAC filed an amicus brief in the US Supreme Court in support of a local politician and serial liar (no redundancy intended) who claimed to have served in the Marines (a lie) and to have been awarded the nation’s highest military honor for heroism in combat (another lie). He has been prosecuted under the federal “Stolen Valor Act” for the speech-crime of claiming falsely to have received the Congressional Medal of Honor. (United States v. Alvarez).

In still other recent Supreme Court appeals, FAC has filed First Amendment amicus briefs in support of:

–persons who make and sell videos of the torturing of small animals (United States v. Stevens);

–hate-filled homophobes who picket near funerals for US servicemen, carrying signs saying “Thank God for Dead Soldiers” (Snyder v. Phelps); and

–companies that sell–to children!—graphically-violent video games featuring, in the words of Supreme Court Justice Samuel Alito, “victims who are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces” (Brown v. Entertainment Merchants Association).

Of course, FAC also assists many perfectly normal folks–even journalists!–whom you wouldn’t hesitate to hire as babysitters for your kids. Nonetheless, advocacy in support of the free speech rights of all manner of extremists and outcasts is central to our mission.

FAC gets involved in these cases because freedom of speech is a principle, not a litigation tactic. If you invoke freedom of speech only to protect ideas and viewpoints with which you agree, you can’t claim  to adhere to the First Amendment as a matter of principle. Selectivity in the application of free speech rights–advocating protection of some speakers, and not others, based on their views–is fundamentally at odds with the idea of freedom of speech.

In a democracy, the need for free speech protection is greatest for ideas and speakers that are opposed by the political majority.  The more unpopular, the greater the need. Although democracy depends on First Amendment freedoms, the First Amendment also serves as a vital check on democracy’s excesses. These include the majority’s impulse to validate its own views by invalidating–through censorship–views that it fears or dislikes.

The temptation is always great to carve out exceptions to freedom of speech for expression that is so hateful and offensive as to have zero social value. After all, so-called “hate speech” is barred to varying degrees in most liberal democracies (including, for example,  France, Canada, Germany, Great Britain and Australia). The United States is the notable exception–and we must continue to be.

Hate speech needs constitutional protection not because bigoted rants, lies and snuff videos deserve an audience–they don’t–but because speech having no social value can’t be proscribed without also suppressing speech that does have social value. Even more than we dislike hate speech we fear a government that has the power to decide what speech will be heard and what speech will be silenced.

Constitutional safeguards for speech that really matters–political speech, informed criticism of official policies, artistic expression–are at their strongest when protection is also intact for speech that makes you want to cover your ears.

The time to really worry about personal freedom in America is when you can no longer hear the voices you hate.
———–

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.

BY PETER SCHEER—Successful technology firms pride themselves on their capacity to disrupt the established order. The reference is usually to a technological advance that poses an existential threat to an entrenched industry or way of doing business. Think of Apple Computer’s impact on the cellphone and music industries, Google on the sale and delivery of advertising, or Amazon on book publishing–to name just a few.

But in their recent protests against anti-piracy legislation pending in Congress–the SOPA  bill—high-tech firms demonstrated, for the first time, their awesome capacity for “creative destruction” of a political establishment that they see as hostile to their interests. Literally within hours of Wikipedia going dark and Google’s covering its logo with the black band of censorship, members of Congress were running for the exits, disavowing their previously pledged support for SOPA.

Legislators barely hesitated before reneging on literally decades of accumulated political debts to Hollywood interests, the principal backers of the anti-piracy bill. These politicians cowered before the emergence of a new political institution—more powerful even than the traditional media, the so-called “Fourth Estate,” in its heyday. Call this new institution, the corporate power brokers of Silicon Valley and other digital meccas across the country, the Fifth Estate. Pulling the plug on SOPA was the occasion for their political coming out.

Shrewdly, the Fifth Estate selected a political strategy that relied entirely on symbolic expression. The online anti-SOPA protests involved no threats of violence, no coercion, no overnight camping in public parks or blocking of street traffic during rush hour. Municipalities were not required to pay overtime to police. Tasers guns and pepper spray remained holstered. And there were no injuries.

The Fifth Estate’s tactic of symbolic protest was the essence of constitutionally protected expression.

In this context it is worth noting that the First Amendment rights on display in this debate were secured by the US Supreme Court’s controversial decision in Citizens United v. Federal Election Commission. That misunderstood case is reviled in some quarters for its affirmation of the First Amendment rights of corporations. Indeed, in the aftermath of the Citizens United decision, a cottage industry has emerged to advocate legislation (or, God forbid, constitutional amendments) to curb the influence of corporations in the political sphere.

Their good intentions notwithstanding, those who believe corporations have no free speech rights (or that they should have, at most, a second-rate version of the free speech protections for individuals), should realize that only the First Amendment stands in the way of governmental punishment–legislative, regulatory or otherwise–against Google and other Fifth Estate corporations for their inciting of public opinion against SOPA-type legislation.

Think of how many members of Congress, humiliated (or at least humbled) by the anti-SOPA blow-back on the internet, would love to not only punish the Fifth Estate for its political impudence, but to neuter it permanently–for example, by blocking corporate acquisitions,  unleashing antitrust and SEC investigations, or instigating IRS scrutiny.

One does not have to be a Ron Paul supporter to appreciate that, for corporations (like Google, Twitter, Facebook and Microsoft), there is nothing more intimidating than being in the cross-hairs of government law enforcement agencies, egged on by pissed-off members of Congress with power over the agencies’ budget appropriations.

Corporations, no less than individuals, need First Amendment protection for their criticism of government and advocacy of policies opposed by government. They need this protection for themselves, for their employees, and for their shareholders and customers.
—————
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). The views expressed here are his alone, not necessarily those of the FAC Board of Directors.

BY EDWARD WASSERMAN–A comment posted to London’s Guardian newspaper said it best: “Censorship, like everything else in the West, has been privatized.”  The writer, somebody called “edensasp,” was referring to news that Wikileaks—the online whistleblower that has been embarrassing governments and corporations worldwide by disclosing their secrets–was suspending operations.

Why? Had its leader, the mercurial Julian Assange, been indicted? Had the black choppers swooped in and taken him out? No, nothing that cinematic. It was the bankers. A handful of big money handlers decided they wouldn’t process donations to Wikileaks, it had exhausted its reserves, and it was going broke.

The fund cutoff started in December 2010. That’s when Visa, MasterCard, PayPal, Western Union, Amazon and Bank of America discovered their patriotic duty.

At the time, five of the world’s top news organizations—The Guardian, The New York Times, El Pais, Le Monde and Der Spiegel—had begun publishing articles based on a remarkable trove of U.S. State Department cables shared with them by Wikileaks. The organizations had spent months sifting from among the documents, eliminating those they thought might cause needless harm. They then launched a barrage of articles derived from candid reports from U.S. diplomats that exposed official lies, both our country’s and dozens of others’.

But official lies have their supporters too, and there was a huge fuss. Because the secret cables were American—even if the people whom the secrecy protected often were not—U.S. politicians led the charge against Wikileaks. Assange was denounced as “a high-tech terrorist,” law-makers demanded his head, and Attorney General Eric Holder launched a criminal investigation of his operation.

And so the money-handlers were stirred to action. Within days Wikileaks was under a financial stranglehold, and it now says its revenues dropped from $140,000 a month to less than a tenth that.

Why did the companies do it? PayPal, the flagship paymaster of the digital world, said it forbids payments to anything that “encourages” illegal activity, and MasterCard said its “rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal.”

Really? “Indirectly facilitating” an illegal act? Think about that. It’s a formulation a second-year law student could tear apart as not just unenforceable, but unintelligible. Doesn’t selling gasoline “indirectly facilitate” speeding? How much of what we consider normal commerce would escape that catchall?  Shouldn’t Bank of America require you to apply for your next ATM withdrawal, just in case?

Besides, what was the illegal act that was facilitated? Nobody has suggested the publications that used the material acted illegally.

And don’t we normally punish after conviction, not before? (Nearly a year later, Wikileaks hasn’t even been charged.)

The explanation was hogwash, of course. It seems obvious the money-handlers’ actions were political, not legal. The financial industry isn’t particularly popular right now, and in the wake of the worst banking meltdown in generations Obama administration officials had made a special point of denouncing the consumer finance sector for its furtive charges and extortionate rates. With regulation looming, tossing a bone to the Justice Department had to make sense.

And they’ve gotten away with it, largely because of the news media’s own deep ambivalence about Wikileaks.  McClatchy’s Nancy Youssef recently reported that support for WikiLeaks was generally weak among U.S. journalists. A committee of the Overseas Press Club of America, she noted, had decided Assange was “not one of us,” the National Press Club wouldn’t comment on whether he should be charged criminally, and such renowned media champions as Floyd Abrams, who helped represent the New York Times in the Pentagon Papers case, and Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, question whether Wikileaks deserves the protections journalists warrant.

Assange has helped arm his critics by releasing in September, without editorial review, the unpublished remnants of the 250,000-document State Department trove that the five news organizations had so carefully picked through last December.

Still, the logic under which critics deny Wikileaks standing as a journalism organization is, to me, baffling. At considerable risk, it acquires information of vast public significance and makes it publicly available. Its disclosures have made headlines worldwide, and have been credited with helping nourish pro-democracy forces with solid information about their own corrupt governments. That sounds like journalism.

Some say Wikileaks has been secretive and irresponsible. If so, it has plenty of company. Any number of perfectly legitimate news organizations resist scrutiny and can be irresponsible in the stories they mangle, overplay or ignore.

That’s regrettable, but the First Amendment doesn’t guarantee a responsible media. It guarantees a media free of censorship. And the principle is the same, regardless of whether the censors are government apparatchiks or private-sector toadies who decided, out of self-interest, to pin a deputy’s badge on their lapels.

Copyright Edward Wasserman 2011
———–
Edward Wasserman is the John S. and James L. Knight Foundation professor of journalism ethics at Washington and Lee University in Lexington, Va.

BY PETER SCHEER–Steve Jobs died at age 56, a young man. But one of the things that stands out about him is the longevity of his superstardom. Jimmy Carter was president when Jobs first appeared on the scene as the bearded personification of high-tech cool. From the early Apple PCs to the launch of the Mac, his involvement in Pixar, his return to a humbled Apple and its reinvention as a dominant force in the media world (iPod, iTunes, iPhone, iPad), Jobs spent more than 30 years at the very top of his game.

It’s as though the Beatles, instead of breaking up in 1969, had kept on writing and recording and performing new songs at the same level of creative intensity and productivity for three decades. Interestingly, one of the few people who comes to mind as possibly rivaling Jobs in this regard is his career-long nemesis, Bill Gates. That they were both children of California culture in the 60s and 70s is not a coincidence.

. . . I first realized Steve Jobs was not merely lucky, but a true—and uniquely American—genius when, with several small children in tow, I saw the first Toy Story movie in 1995. Jobs’ launch of Apple was impressive, to be sure, but Apple in the late 80s and early 90s was not so clearly superior in its technology or vision to the legions of other startups making first-generation personal computers.

Then came Pixar, which Jobs bought when the company had zero revenues (and lots of human capital). Its first full-length computer-animated film was so good-and such a leap, in every possible way, from everything that had come before, that there was no escaping that Jobs was a truly gifted corporate leader. With Pixar, lightning had struck a second time for Steve Jobs. It would strike for him again and again and again.

. . . The lionizing of Steve Jobs, one of the world’s richest men, is in sharp contrast to the political sport of  thrashing America’s super-rich: CEOs, hedge fund managers, investment bankers, venture capitalists (and most of the residents of Manhattan’s upper east side). As Jobs lay dying, New York’s  “Occupy Wall Street” demonstrations drew ever bigger crowds of participants and onlookers.

Jobs’ stature reflects America’s ambivalence about personal wealth. Jobs is spared the groundswell of populist anger because he is seen as deserving his fortune (over $6 billion based on his stock holdings alone). He is classed not with corporate chieftains and financiers for this purpose, but with professional athletes and Nobel Prize winners. Jobs’ oversized compensation is viewed as the just reward for a personal talent so great and so rare it is like a national asset.

Jobs’ winning streak at Apple, particularly during the last decade, was so stunning and consistent that only fools and masochists bet against him. And for a while it even appeared that, against all odds, Jobs had managed to beat a diagnosis of pancreatic cancer.

. . . Steve Jobs had the truly bizarre experience of reading his own obituaries—the first wave of obituaries that were published in August, following his resignation as Apple CEO. I think he would have been struck by the outpouring of tributes and affection: their volume and depth reflected more than just his importance in the business world or the history of computers.

Jobs would have seen that he had connected in some fundamental way with his customers who, by the millions, not only had opened their wallets to buy Apple’s cool, lifestyle-defining products, but also identified with Jobs’ personal narrative: the college dropout who followed his dream from his parents’ garage to the top of the Fortune 500, all the while staying true to some inner compass wired to a uniquely California culture prizing, above all else,  intuition, creativity, community and risk-taking.

Not a bad legacy. Not bad at all.

————

Peter Scheer, a lawyer and journalist, is executive director of FAC. This article, which also appeared in the San Francisco Chronicle and Huffington Post, reflects his views only, not those of the FAC Board of Directors.

BY PETER SCHEER–Sitting on Governor Brown’s desk right now is SB 914, a First Amendment Coalition-sponsored bill that would restrict warrantless police searches of citizens’ cellphones. Won’t you please  join our Petition urging the Governor to sign this important safeguard of personal privacy and free speech rights.

Why is SB 914 needed?

Imagine you are observing a demonstration and are swept up in a mass arrest of protesters. You could be a journalist, a blogger, or just an unlucky passerby. Under current law, police can seize your cell phone and, without any explanation or reason at all, search through all the megabytes of information stored there, no matter how confidential, sensitive or private.

That is the thrust of a California Supreme Court ruling, People v. Diaz, issued earlier this year. Interpreting federal legal precedents, the Court analogized a police search of a cell phone to a police search of a pack of cigarettes. But, of course, that ignores the uniquely intrusive nature of coerced disclosure, through a cell phone search, of emails, contacts, notes, photos, calendars, articles, drafts, confidential sources and other files comprising the digital details of one’s personal and business life.

SB 914 (read the bill), based on the California Constitution, will reverse People v. Diaz by requiring police, following an arrest, to obtain a warrant to search an individual’s cellphone (or other “portable electronic device”), just as the police would have to do for a search of files located in your office desk or your bedroom (which are far better analogies than a cigarette pack). The virtue of a warrant requirement is that searches of such intrusiveness will, at the very least,  be subject to judicial supervision.

This will not unduly hamper police work. Under SB 914, police would have authority to hold a suspect’s cell phone, protecting against the deletion of files (remotely or otherwise), while they arrange for a search warrant. And in genuine emergencies police would have the power to search a cell phone immediately, without a warrant (what lawyers refer to as “exigent circumstances”).

SB 914, introduced by Senator Leno (D-San Francisco), is not a “liberal” bill or a “conservative” bill. Sponsored by California Newspaper Publishers’ Association and the ACLU–in addition to the First Amendment Coalition–SB 914 was enacted with bipartisan majorities in both the Assembly and Senate, no small feat in this era of political dysfunction and paralysis. Nonetheless, you will not be shocked to learn that law enforcement interests oppose SB 914. Their oversized clout in Sacramento is presumably the reason Governor Brown remains officially undecided.

That’s why I am asking you to let the Governor know today that you want him to sign SB 914. Please take a minute now to sign the First Amendment Coalition’s petition.

Many thanks.

Peter Scheer is Executive Director of the First Amendment Coalition

BY NICOLE WONG—Here’s the thing about censorship: in this globally connected world, censorship is never local.

So, whether you live in the SF Bay Area or not, whether you ride the BART rail system or not, the recent actions of local government officials affected us all.

Last Thursday, during the evening rush hour commute, BART shut down cell antennas in several of its San Francisco stations. According to BART’s official statement, silencing mobile devices was “one of many tactics” to prevent an on-site protest against the agency. BART officials claim that the protesters planned to “coordinate their disruptive activities and communicate about the location and number of the BART Police.” This supposedly justified the blackout of all cell phone activity within the BART stations.

But crowd control and communication control are two very different things, and it is dangerous for governments to confuse them. That is true for BART, as much as it is true for Hosni Mubarek in Egypt or David Cameron in the UK.

In the wake of a second BART demonstration yesterday, there is a great deal of debate about the balance between public safety and free expression. This debate is critically important. It is a fundamental piece of our democracy that distinguishes us from other more repressive places in the world.

And here is why what San Francisco and BART officials do next matters: the whole world is watching.

The “local” conversation about the police powers vested in BART, the applicability of the California Constitution or the primacy of the First Amendment right to free speech and assembly is only one part of the picture. Be sure that government officials in China, Vietnam, Turkey and Saudi Arabia are also watching this debate. Every time a Western democratic power chooses the censorship switch, it validates the censorship in other countries where the First Amendment has no purchase.

In order for us, as a democratic society, to maintain the moral authority to condemn repressive censorship and encourage the repressed to speak out against their governments, we must guard against the eroding of our own principles. Even if it involves the actions of just one local transit authority.

This is not a call for the further criticism of BART. If we are honest with each other, no one is seeking a world in which the police are prevented from acting swiftly and responsibly to protect people — certainly not unmanaged crowds within falling distance of electrified rails.

This is a call for BART to lead in a way that serves its patrons and provides an example to every other government authority with the power to shut down a communication network. There must be a framework and decision process for deciding which tools to use in order to control a crowd. In this country, and particularly in San Francisco, the communication “kill switch” should be a tool of last resort.

copyright Nicole Wong 2011

Nicole Wong, a former member of FAC’s Board of Directors, was a lawyer for Google responsible for (among other things) responding to foreign governments’ demands for removal of content from Google services.

BY PETER SCHEER—Google’s $12.5 billion purchase of Motorola is a sign of serious problems for the US economy. Motorola’s strategic appeal to Google is its portfolio of thousands of patents covering mobile phone technologies. But the acquisition of these patents creates no real value for Google. They are in the nature of a massive  premium payment for insurance against suits by competitors and others for alleged patent infringement.

Google is at risk for such suits because the vagueness of patents, a lack of predictability about their  validity in many cases, and ambiguities in American patent law, combine to create massive uncertainty for Google about whether its next big innovation—Google+, voice recognition for the Android OS, Google Voice, video conference-calling, or whatever—will be blocked by a lawsuit claiming infringement of another company’s patent.

To minimize this uncertainty, Google will pay, must pay, billions of dollars to arm itself with patents that it can use to countersue against those who would sue Google. Needless to say, the assets used to buy this weaponry are assets that otherwise could be spent  productively on creating new businesses and hiring the thousands of employees needed to staff them.

In all of this, there is nothing unique about Google’s experience (apart from its scale, of course). The uncertainty facing Google about the threat of patent infringement claims is also facing thousands of other America companies, big and small. They must choose, like Google, to buy horribly expensive insurance–the word “protection,” with its intimations of organized crime, may be a more accurate description–or leave themselves exposed to legal claims that can be ruinous even if they meritless.

Multiply this uncertainty throughout the economy, and the potential impact on economic growth and job growth is huge. Politicians and economists, particularly of the Republican variety, have been quick to blame the US economy’s slow pace of recovery on government uncertainty–uncertainty about the impact on businesses of new federal initiatives (particularly, the Obama administration’s healthcare program), tax policy, and environmental regulations. They should be expressing similar alarm about the considerably less speculative costs (like, exactly $12,5 billion for a single corporate transaction) imposed on the economy by the growing threat of patent litigation.

This is a problem created by government. It can also be fixed by government.

———

Peter Scheer, a lawyer and journalist, is executive director of FAC. The opinions expressed here are his alone and do not necessarily reflect the views of the FAC Board of Directors.

BY PETER SCHEER—The economic forces that pummeled every American newspaper from the New York Times to the San Francisco Chronicle have barely disturbed Rupert Murdoch’s media properties. The Wall Street Journal, for one, has not only weathered the storm that decimated competitors’ newsrooms, but it has added editorial staff, news features and online resources.

This considerable achievement, however, did nothing to insulate News Corp from the firestorm of scandal involving its tabloid newspapers in Great Britain. A besieged Murdoch has had to shutter the News of the World in London, cancel  a strategic satellite-TV acquisition, jettison long-time News Corp editors and executives by the masthead, and hunker down with his high-powered lawyers to map out strategy for saving his company . . . and himself.

As this story unfolds, one should bear in mind that this is a media feeding frenzy of a media feeding frenzy. We are watching the usual excesses of British tabloid journalism, squared. Some perspective is in order: It’s summertime; breaking news is in short supply; a surfeit of reporters in London is chasing a shortage of stories in one of the world’s most overheated media markets.

And, most important, the prospect of Murdoch’s  downfall, which must be rated a distinct possibility at this point, is enough to create an orgy of schadenfreude among journalists and media executives everywhere.

This is not to excuse News Corp’s conduct. The most serious charges to have surfaced so far focus on the hacking of voicemail accounts belonging to public officials, celebrities, and private individuals. These actions are crimes (in the US as well as in England) and should be prosecuted. But as News Corp editors and reporters are placed under arrest, charged with felonies and compelled to testify about sources and stories, let’s pause for a moment before piling on

Breaking the law in pursuit of news is a crime. Journalists have no immunity to laws of general application. Reporters and editors in the US understand this and, in my experience, refrain from illegal measures for obtaining information. If American journalists are more scrupulous about legal rules than their British counterparts, that may be because First Amendment protections favoring the press give American journalists a stake in the legal system–something that British journalists, subject to arbitrary censorship and injunctions from hostile courts, do not share.

That said, some of America’s best journalists push the limits– obtaining information from sources who break the law–to produce important news stories that otherwise could not be written. Consider articles based on classified information, or that result from the breach of federal grand jury secrecy (for example, the Chronicle’s reporting that led to the prosecution of Barry Bonds), or are based on corporate trade secrets that have been taken by disgruntled employees. In these and other cases, journalists depend centrally on information supplied by sources who commit crimes, either in obtaining the information or in giving it to journalists (or both).

The  immunity of the journalist, despite the liability of the source, is a crucial distinction in US law and First Amendment jurisprudence. But outside journalism and legal circles, the distinction is not so obvious. Demagoguing politicians incensed by the hacking scandal are unlikely to appreciate the difference between voicemail-hacking committed by a journalist’s source, acting independently, and voicemail-hacking by the journalist himself.  Out of such confusion can emerge investigations and legislation posing grave threats to civil liberties.

News Corp’s British publications also stand accused of paying bribes to news sources. Although actual bribes should, of course, be prosecuted, some skepticism is in order here, too. “Checkbook journalism” has become a common practice in certain quarters of the US news media, especially television networks competing for exclusive on-camera interviews.  Only last week CNN confirmed to Howard Kurtz (in the Daily Beast) that it had paid for photos sent to Rep. Anthony Weiner by a woman to whom the priapic Congressman had sent one of his trademark digital greetings. A recent New York Times article detailed numerous cases of  US networks paying for access to sources, often under the guise of purchasing licensing rights.

Public outrage over questionable payments by London tabloids could easily morph into public demands for a legislative response targeting American media companies. But, while checkbook journalism is deplorable, and though some of its American practitioners might even welcome government intervention to curb it, any legislative solution would be fraught with risks to free speech.

The list of News Corp staffers who have resigned, including Les Hinton, head of Dow Jones & Co. (and publisher of the Wall Street Journal) and Rebekah Brooks, the head of News International (who was also arrested), gets longer by the day. They should not be written off  by the press as criminals—not yet, at any rate. What is needed is measured, thoughtful reporting and a dose of due process.

Let’s see what the evidence shows.

—

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition (FAC). The views expressed here are his own, and do not necessarily reflect the views of the FAC Board of Directors.

BY PETER SCHEER—The Israeli Parliament on Monday passed legislation to bar public calls for a boycott against Israel or its West Bank settlements, according to the New York Times. The law’s supporters said it was necessary to push back against what they described as a strategy to delegitimize Israel in the eyes of the world.

Am I the only one to see the irony here? Suppressing calls for boycotts or other demonstrations, ostensibly to protect against challenges to a government’s legitimacy, is akin to shutting down a university in order to counter an assault on academic freedom, or canceling an election to thwart threats to democracy. Or, to paraphrase US policy proclamations during the Vietnam War, destroying a village in order to save it.

Israel, which is not only the oldest democracy in the Mideast, but, even following the Arab Spring revolutions, the freest Mideast country by far and the most protective of individual liberties, ought to know better than to engage in this sort of  legislative doublespeak.

The way to protect Israel’s legitimacy is by protecting speech and expressive (nonviolent) conduct that contests Israel’s legitimacy, whether from Israeli citizens,  Palestinians in the occupied territories, or neighboring countries with which Israel remains formally at war. Israel is strengthened by its tolerance of criticism.

* * * *

And closer to home . . . .

A native American newspaper in a remote area of northern California has learned the hard way that First Amendment’s safeguards do not necessarily apply on a tribal reservation.

The two-person staff of the Two Rivers Tribune in eastern Humboldt County, a weekly newspaper owned by the Hoopa Valley Tribe, was ordered by tribal authorities to cease publication “effective immediately.” The Hoopa Valley Tribal Council, while citing financial considerations, made clear that displeasure with the Tribune’s editorial policies figured prominently in the decision to shut down the newspaper.

Council chairman Leonard Masten, in a memo to the Tribune staff, said that he was “very disappointed” in recent articles published in the paper, apparently referring to an interview with a fugitive and news coverage of a ballot initiative to legalize marijuana. He said these articles were “not in the best interest of the tribe.”

Hopefully Masten and other Council members will come to their senses and realize that the Hoopa tribe’s members are best served by a publication that is independent of the tribe’s government. Even though tribal authorities, as the Tribune’s owners, may have the power to dictate what stories the paper publishes, their exercise of that power is an offense to the tribal members–the voters–who elected them and to whom they are, in theory, accountable.

Voters want a real newspaper, not a tribal propaganda organ.

BY PETER SCHEER—Ever since Wikileaks became a household word, traditional news media have had every reason to try to replicate its technology for receiving leaked documents, via the internet, on an anonymous and secure basis.

Traditional media may be at war with Julian Assange and disagree fundamentally with his methods in vetting and disseminating classified documents, but they can still see the appeal of a technical mechanism to frustrate eavesdropping on journalists and sources. If you’re in the investigative journalism business, anything that protects confidential sources, enhancing the security of their communications with reporters, is an obvious benefit.

Even more important is the media’s desire to neutralize Wikileaks’ advantage in the competition for access to sensitive government records. Wikileaks, on the strength of its promise of anonymity, has managed to insert itself as an intermediary between news sources and the news media, relegating the latter to a secondary role on some of the biggest stories of the past year. This change in status is a source of considerable resentment among affected news organizations, particularly the New York Times, whose editor lashed out at Assange in a recent Times’ magazine article.

So, will mainstream media be able to match Wikileaks’ leak technology? Of major US news organizations, the Wall Street Journal is the first to try. Unveiled last week, the Journal’s system for secure receipt of documents, called “SafeHouse,” is on a new website with its own domain. Like Wikileaks, SafeHouse enables users to upload documents directly to a secure server, bypassing email services. Access to the server is limited to the Journal’s editors, who use an encrypted connection to retrieve documents.

Although SafeHouse is a commendable effort, it is handicapped by limitations that do not affect Wikileaks. I am referring not to any technical shortcomings of the Journal’s service (which, in any case, I would not be competent to judge), but to the fact that the Journal, as a legitimate company with assets, employees and shareholders to worry about, is constrained by legal considerations that Wikileaks is more or less free to ignore.

Consider the Terms of Service for SafeHouse. Sources who submit documents must “agree not to use SafeHouse for any unlawful purpose” and to represent that they “have all the necessary legal rights to upload or submit such content and it will not violate any law or the rights of any person.”

Hmmm. That pretty much rules out all classified government documents (and even unclassified documents that a would-be source is not authorized to disclose). Also ruled out by the Terms of Service are leaks of any documents belonging to private corporations, since they would be copyrighted in nearly all cases (and in some instances would also constitute “trade secrets”).

The SafeHouse terms of service go on to warn that, unless the source and the Journal agree otherwise, the Journal has the “right to disclose any information about you to law enforcement authorities or to a requesting third party, without notice, in order to comply with any applicable laws and/or requests under legal process. . .”

Translation: If the Journal receives a subpoena demanding copies of documents that you submitted confidentially through SafeHouse, don’t expect Journal editors to pay fines or go to jail to keep them secret. Don’t even expect the Journal to give you a heads-up about a subpoena; it may turn over your documents and tell you after the fact (or not at all).

The SafeHouse disclaimers seem laughably out of place: OK for freelance articles submitted for publication, but not for a website whose purpose, after all, is to encourage submission of documents by persons who, if exposed, could be fired, sued or prosecuted. But while the legal fine print might have been phrased more felicitously, the Journal’s lawyers had no choice but to include these warnings in some form.

The Journal can’t ignore a subpoena or court order. Neither can the New York Times, Washington Post, Los Angeles Times, etc. Although they might choose to go to the mat in a particular case, they certainly can’t commit in advance to do so, for a source they don’t know, offering government records they’ve never seen. The best they can do (or, that the lawyers will let them do), is leave open the door to possible negotiation of different terms of service, at the news organization’s option, in appropriate case.

But those subleties will be lost on confidential sources working, say, for the NSA or Apple Computer. Wikileaks, on the other hand, needn’t deter them with legalese. Court orders against Wikileaks, for all practicable purposes, are unenforceable. Attempts to shut it down are of no avail because its content is “mirrored” on dozens of other websites and servers. If one iteration of Wikileaks is disabled by court order (or other government action), others pop up in its place.

Wikileaks is a rogue news outlet that is both stateless and virtual. Unfortunately for mainstream media, those characteristics give it a permanent leg-up in protecting confidential documents and sources.

=======

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition. This commentary is his only, and does not necessarily reflect the views of the Coalition or its Board of Directors. The Commentary has also been published in the Huffington Post. You can follow Peter Scheer on Twitter.

Richard P. McKee, who died this week at age 62, was indefatigable in his advocacy of open government and participatory democracy in California. Co-founder of Calaware and a former Board member and Board President of this organization, Rich cast a big shadow in the world of people committed to shining light on government decision-making in California.  But he cast an even bigger shadow among city councils, school districts and boards of supervisors that had made the mistake of disregarding Rich’s demands that they abide by the letter and spirit of state open meeting laws.

Through his relentless campaign of challenges, demands and (when necessary) litigation, Rich forced a generation of recalcitrant government officials, especially in southern California,  to do more of their deliberating in public. And in the process he gave many, many citizens a real voice in their local government.  It is a fine legacy.

For more about Rich McKee, we recommend the obituary in today’s Los Angeles Times. Follow this link.

-PS

BY DICK ROGERS—When it came time last December to vote on a labor contract for hundreds of city workers, San Leandro leaders didn’t scurry into a back room to make the politically hot decision in secret.

That’s the good news.

The bad news is that San Leandro, like other local governments, obscured its intent and minimized public participation in another way. Call it hiding in plain sight.

Instead of helping the public by spelling out the most salient contract provisions, the city’s official agenda announced the upcoming vote like this:

“Resolution Approving the Memorandum of Understanding [MOU] Between the City of San Leandro and the San Leandro City Employees’ Association, Local 21 IFPTE, AFL-CIO [SLCEA] (provides for a two-year contract for the period January 1, 2011 to December 31, 2012).”

Did that mean city workers were in line for raises or two years of wage stagnation? Was the City Council about to adopt pension reform or continue business as usual? What was the price tag for taxpayers?

At a time when local governments are in financial trouble and the public is demanding answers, these are key questions. But not a word was said. For Joe Citizen, the vague and unhelpful language offered no clues. But the city wasn’t through pulling down the curtain. Instead of encouraging public involvement, the city buried the item in the middle of the agenda’s consent calendar, generally reserved for routine decisions that need no discussion, like new stop signs. Although council-watchers and political insiders knew to show up, would the general public have packed the chambers had they known what was at stake?

San Leandro isn’t unique when it comes to favoring opaque language. Last year, the Los Angeles City Council agenda listed “CONSIDERATION, DISCUSSION and POSSIBLE ACTIONS addressing the Fiscal Year 2009-10 and 2010-11 budget deficits, City staff and others to report on budget balancing matters and possible closed executive session as it may relate to bargaining instructions relative to negotiations with employees and employee organizations.”

Not once did officials warn the public they were about to authorize elimination of as many as 4,000 positions.
The First Amendment Coalition is currently involved in litigation with Los Angeles, arguing that the state’s Ralph M. Brown open meetings act requires more than vague, misleading or wholly incomplete notice when key decisions are about to be made.

The public deserves better. It doesn’t take a Steinbeck to write clearly and concisely. Transparency is all the rage these days, but it’s little more than a buzzword when government cloaks itself in jargon and bafflegab.

Dick Rogers, a veteran newspaperman, was most recently Metro Editor, then ombudsman at the San Francisco Chronicle. He has taught at San Francisco State University and Ohlone College in Fremont and is a writing coach for the California Scholastic Journalism Initiative .  Dick is a member of the FAC board of directors.

by Edward Wasserman|

It’s the climax of the 1975 hit Three Days of the Condor. On a Manhattan sidewalk fugitive CIA analyst Robert Redford, having outgunned his assassins, confronts his double-dealing boss, who demands he join the sinister plot to control the world’s oil. No way, Redford says, he’s already blown the whistle. And the camera pans across the street where a truckload of newsprint is being delivered—to The New York Times. Game over.

Ahh, Hollywood. But what really happens when you’re a major league whistleblower? Say you’ve acquired sensitive documents of huge public importance, very hush-hush. Although it’s bound to annoy powerful people and may expose you to reprisal, you deliver them to the world’s mightiest news media, including The New York Times, which use them in sensational articles that have worldwide impact.

The Condor’s triumphant fourth day? Well, no. Sure you’ve handed over official secrets of global significance at considerable personal risk. That’s not enough. You’ve also got to be charming. Make sure your clothes are laundered and wrinkle-free. You may be living out of a backpack and pulling impossible hours culling data, but don’t forget to bathe regularly. And even if one of the organizations you’ve given this material to violates the conditions you set, don’t you dare get angry.

And know this: That every conversation you have with the reporters you’re working with, every snarky comment they make about you, every detail of your collaboration, may be used in a high-profile account of the whole affair that will portray you as a peevish, contemptuous, slouching, disheveled, foul-smelling, paranoid, self-serving, manipulative, volatile ideologue.

Those descriptors come more or less verbatim from the remarkable cover story by The New York Times’ top editor, Bill Keller, in the newspaper’s Jan. 30 Sunday magazine, titled “The Boy Who Kicked the Hornet’s [sic] Nest.” It is Keller’s 8,000-word version of his newspaper’s dealings with Julian Assange, the 39-year-old Australian-born founder of Wikileaks, the worldwide online anti-secrecy network that last year provided The Times and other leading newspapers with a vast and extraordinarily rich trove of classified U.S. government documents.

Keller’s account is adapted from his introduction to a book the Times is publishing that reprints the stories that the newspaper published from Wikileaks’ material, which Keller acknowledges was of “immense value.” Hence, first the Times got a series of exceptional stories about frontline military and diplomatic realities, and now it’s republishing those stories as a book that, no doubt, is destined for The Times’ best-seller lists.

So you’d have to say that Assange, on balance, has done well by the Times. He provided it with solid information, nothing spun, nothing fraudulent—its authenticity never, to my knowledge, even challenged—and he gave the Times plenty of time, as well as the editorial discretion, to use the material in whatever ways it deemed appropriate.

So why is Keller’s account so nasty? E-mails he received from reporters who worked closely with Assange—did they know they were writing for publication?– are quoted describing Assange “like a bag lady walking in off the street… He smelled as if he hadn’t bathed in days.” Assange’s hours of unpaid labor are brushed by, yet when he’s angered after The Guardian of London, his principal media conduit, enlisted The Times for a later phase of the project despite Assange’s clear instructions to the contrary, he’s described as having “a tantrum.” Time and again he’s described with such terms as “arrogant, thin-spinned, conspiratorial,” as given to “bombast and dark conspiracy theories.”

What gives? Since when is an honest source pilloried? You would have thought Assange had deceived the paper, like the trusted U.S. officials who in 2002 fed The Times garbage about an Iraqi nuclear program and helped dupe the United States into a murderous and needless war. When will a top Times editor publish an account that even names those sources, let alone belittles them for their wardrobes and personal hygiene?

The Times let those lying dogs sleep, yet Keller, a journalist of unimpeachable accomplishment and stature, just had to trash a guy whose organization has struck the most powerful blow against official secrecy in a generation, somebody who may yet be jailed for what he did, an eccentric but unquestionably transformational media player.

Perhaps Keller’s institutional vanity was offended that Assange had suggested he was “the great puppet master of the news media”—an assertion never actually tied to Assange, but which the Times thought worth highlighting graphically in Keller’s story.

Maybe that explains Keller’s eagerness to distance his organization from Wikileaks: They’re not like us. We’re careful and professional (and well-coiffed.) Perhaps it’s nothing more profound than rivalry.

After all, at the end of Three Days of the Condor, it’s Redford’s renegade boss who gets the last word: “How do you know they’ll print it?” Redford has no answer. Nowadays, he wouldn’t need one. We’d be reading the Condor’s files on Wikileaks.

Copyright © 2011 by Edward Wasserman

Edward Wasserman is the John S. and James L. Knight Foundation professor of journalism ethics at Washington and Lee University in Lexington, Va. He writes and speaks widely on matters related to professional rights and wrongs, technological change, and media ownership and control. His academic specialties include plagiarism, source confidentiality and conflict of interest.

BY PETER SCHEER—An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for damages because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century, the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart in “Casablanca.”)

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its appeal and potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

========

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know. www.firstamendmentcoalition.org

BY PETER  SCHEER–An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for emotional distress because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century,  the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart speaking to a Nazi officer in “Casablanca.”)

Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting, in some circumstances, expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know. www.firstamendmentcoalition.org

BY PETER SCHEER—-The Obama administration has made no secret of its desire to unplug wikileaks, the whistleblower website infamous for data dumps of classified records. Of the few options available to the government, the best is one that probably hasn’t been considered in this context: enacting a federal Shield Law.

How would a Shield Law–a version of which has passed the House and awaits a vote by the full Senate—put Wikileaks out of business? The answer is that it would remove the need that Wikileaks fills. If that were to happen, wikileaks would receive few, if any, sensitive  documents leaked by sources inside US government agencies.

The purpose of a Shield Law is to enable journalists to protect the identity of their confidential sources—which, under current law, they can’t do. Although journalists, in dealings with a source, can promise confidentiality up to a point–-the point being when a federal judge orders a journalist to identify her source or go to jail—the risk of disclosure deters sources in many cases.

Journalists have had their hands tied in this way since 2005, when the Supreme Court declined to review federal court rulings ordering reporters Judith Miller and Matthew Cooper (then of the New York Times and Time Magazine, respectively) to reveal their confidential sources for information about the outing of CIA operative Valerie Plame.

The Supreme Court’s inaction fundamentally altered the relationship between journalists and  sources. Journalists could no longer credibly promise  anonymity to a source.  And whistle blowers came to realize that  federal judges enforcing  grand jury subpoenas could, and would, force journalists, despite their intentions to the contrary, to identify confidential sources.

Wikileaks emerged as a technological solution to this  hole in the fabric of legal rules implementing the First Amendment’s free press and free speech guarantees. Wikileaks is designed to foil subpoenas or other assertions of judicial power. Because the website is not tied to any single real-world venue and apparently was built with layers of redundancy, court injunctions issued against wikileaks, whether directed to its service providers (ISPs), lawyers or other entities, are unlikely to disable it.

More important, wikileaks claims to use technology that erases the fingerprints of  sources, rendering leaked documents untraceable. By contrast, the same documents leaked to the Washington Post, whether by means of email, “cloud”-based internet services or other electronic communications, would be vulnerable to interception and tracing. And if the documents, instead, were hand-delivered to the Post, its reporter could be subpoenaed and forced to testify.

Imagine, for a moment, that you are a government official in possession of an internal investigative report of official wrongdoing that has been suppressed because it would cause embarrassment to the administration. You wish to leak the report to the New York Times or the Los Angeles Times. The safest way to do that, today, is to leak the report to wikileaks with instructions for wikileaks to pass it on to one of those papers.

This, in essence, is what happened in wikileaks’ handling of the voluminous records it received concerning Iraq and Afghanistan. The source (or sources), rather than leaking to the New York Times directly, leaked to wikileaks. Wikileaks, in turn, provided the records to the New York Times (as well as the Guardian in London, Der Spiegel in Germany and other publications). The news organizations dealt only with wikileaks. They had no contact with, and presumably were never told the identity of, the sources.

Ironically, wikileaks’ surging notoriety, and the controversy surrounding its founder, Julian Assange, have only increased opposition in Congress to the Shield Law. But opponents, who are worried that a Shield Law could provide legal protection to wikileaks, miss the point. Wikileaks’ technology already gives it de facto immunity from American judicial process. The Shield law is irrelevant in that respect (although it does not exempt wikileaks, in fact).

But wikileaks’ continued viability does depend on traditional media’s vulnerability to the same judicial process.  Remove that vulnerability—through enactment of a Shield Law—and wikileaks’ utility will be greatly diminished. The resulting shift in leaked, sensitive documents from wikileaks to major news organizations, though hardly ideal from the standpoint of US government agencies, is still a huge improvement: legitimate news organizations are sensitive to security concerns and don’t engage in wholesale dumping of classified data on the internet.

Turning out the lights at Wikileaks’ is not the only reason or even the main reason to back the Shield Law, of course. However, it has the advantage of appealing across party lines in a Congress that is otherwise incapable of bipartisan legislation. And it provides a lawful means of protecting national security while also strengthening First Amendment rights.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition. The views expressed in this commentary are his alone.

BY PETER SCHEER—Although the anti-war movement of the 1960s has few heroes still standing,  Daniel Ellsberg, the former defense analyst who leaked a secret history of the Vietnam War that became known as the Pentagon Papers, is surely one. As such, Ellsberg’s full-throated support for  Wikileaks, delivered as it dumped on the internet nearly 400,000 classified documents about the Iraq War, must have come as a welcome endorsement for the rogue website.

Does Wikileaks deserve Ellsberg’s seal of approval? The answer depends on whether we are talking about the “good” Wikileaks or the “bad” Wikileaks, because the whistleblower website combines both personalities: smart enterprise journalism, on the one hand; a reckless disregard for harm to genuine national security interests, on the other.

The good Wikileaks provided the trove of Iraq documents–subject to an embargo—to The New York Times, The Guardian in London, Der Spiegel in Germany, Le Monde in Paris, and the English language version of Al-Jazeera.  The embargo assured that the chosen news media would have sufficient time, before publication, to analyze the voluminous records, to determine their authenticity, to place them in context, and to assess their importance as news.

By providing the records to only a few news outlets, each with exclusivity in its home market, and by insisting on a common deadline to protect each outlet from being preempted by the others, Wikileaks provided an incentive for the media organizations to invest in the story by assigning their top reporters and editors. This assured news coverage of exceptionally high quality hat the media would promote heavily to its customers.

Wikileaks’ strategy also assured that the news organizations had the time, if needed, to consult (on background) with US defense and intelligence officials for help in identifying the most sensitive information in the war logs–intelligence sources, persons cooperating with NATO forces, and military capabilities (if any)–so they could avoid unintended disclosures that might harm security.

The result has been a thoughtful and richly detailed first draft of history about the Iraq War that is very much in the tradition of the Pentagon Papers, as reported nearly 40 years ago in lengthy dispatches in the Times, the Washington Post, the Boston Globe and other publications receiving Ellsberg’s xeroxed stacks of records, each struggling to stay one step ahead of a Justice Department summons. Wikileaks’ founder, Julian Assange, has been brilliant in manipulating the media to publish  stories about the Iraq war that he wants.

That is the good Wikileaks. The bad Wikileaks, not satisfied with front-page stories in the New York Times and the other publications, and despite demands and threats from the US government, proceeded to dump virtually its entire set of 400,000 Iraq War documents on the open internet, where they are being painstakingly mined for information and insights by citizens, historians—and, yes, enemies of the United States.

There is no justification for wholesale unloading of classified information on this scale. While security risks can be managed (through redaction) in the online publishing of one or several classified documents, that is not true when releasing records numbering in the tens or hundreds of thousands.  Whatever Wikileaks’ motive—defiance of the Obama administration; demonstrating  its independence of traditional media; or providing the public with unmediated access to primary source materials about America’s longest war–the risk of harm to individuals and to US security interests is unacceptable.

Ellsberg understands this. In 1971, when he delivered the Pentagon Papers to major US newspapers,  Ellsberg did not give them everything he had. As he revealed at a First Amendment Coalition conference many years later, Ellsberg held back one volume of the Pentagon Papers containing the most sensitive, highly classified records.

Ellsberg’s restraint offers a lesson that Wikileaks needs to absorb the next time it is given classified records for wholesale release. If there is a next time.

—–

Peter Scheer, executive director of the First Amendment Coalition, is a lawyer and journalist. The views expressed here are his own.

A big wet First Amendment kiss-off to Jim Dear, Mayor of Carson, CA (population 92,255). In his capacity as chair of City Council meetings in the LA suburb, the Mayor is armed with something that all public officials must covet: a mute switch.  Just a press of the switch, and Mayor Dear is able to silence members of the public as they address the Council during public hearings.

Although California law permits time limits and other reasonable rules, administered evenhandedly, to manage public participation at public meetings, government officials may not bar or cut short particular speakers based on the content of their  remarks. In fact, there’s a word for the exercise of that sort of control over speech: censorship.

After receiving complaints about Mayor Dear’s hair-trigger operation of the mute switch at public hearings of City Council meetings, the LA DA’s Office conducted an investigation which focused on the silencing of speakers who presumed to address individual Council members and to criticize their performance.

After reviewing hours of  video-taped Council proceedings, the DA’s Office dismissed the argument, advanced by the Council’s lawyer, that such comments could be silenced because they dealt with matters outside the “subject matter jurisdiction” of the Council.  Criticism of individual members of the City Council is “fair political speech. . . ,”  which, “however uncomfortable or unpleasant, is constitutionally protected,” the DA concluded in a September 30 letter to all members of the Carson City Council.

We would add that if Mayor Dear persists in using the mute switch against members of the public, the public should consider deploying a different device against  Mayor Dear: “the hook.”-PS

A First Amendment Kiss-off to Judge Judith Bartnoff. The Washington, DC Superior Court judge must have missed school the day her law school class learned about the First Amendment.

In a recent case involving a dispute between a law firm and its former client, the judge issued a TRO forbidding a legal newspaper, the National Law Journal, from publishing information about a Federal Trade Commission investigation of the client, even though the newspaper had obtained the information legally.

Such an order is a classic “prior restraint,” which ranks near the top of the hierarchy of First Amendment violations. To the objection that the TRO infringed free speech safeguards, Judge Bartnoff reportedly said: “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.”  The Law Journal’s emergency appeal–backed by an amicus brief on behalf of multiple news organizations–was cut short when lawyers for the client company, perhaps realizing that their efforts to suppress a news story had only increased public interest in it, requested that the TRO be withdrawn.

Some advice to judges who preside over cases that generate media interest: It’s OK to ask a journalist not to include something in an article or posting, as long as it’s clear that the choice remains with the journalist (or her employer). What a judge may not do, consistent with the First Amendment, is dictate to a reporter what she may, or may not, write.– ps

A First Amendment kiss-off**  to Craigslist, which is resisting the demands of seventeen state attorneys general (but not including California’s Jerry Brown) that it shut down the website’s “adult services” section because, claim the AGs, it continues to promote prostitution and child-trafficking despite the site owners’ introduction of vetting (by lawyers, no less!) of sexually-oriented listings.

Let’s be clear: Craigslist has every right to publish sexually-explicit personals and ads–even ads by prostitutes trolling for customers.  The ads are no different than the sleazy come-ons that for years have filled the back pages of alternative newspapers. Craigslist gets no lesser degree of First Amendment protection merely because its adult services ads, on one of the internet’s busiest sites, are more effective than the ads of print competitors.

But just because Craigslist has the right to post these ads–-providing a market for adult consensual transactions, yes, but also, inevitably, for exploitation of the worst kind–-doesn’t mean that it has to exercise that right. By choosing to stay in the sex ad business, Craigslist not only appears irresponsible, but it also creates the risk of a spasmodic backlash in state legislatures and Congress that could seriously threaten free speech on the internet.

Finally, please spare us the argument about how hard it is to distinguish between legitimate ads and ads hawking the services of prostitutes–like these listings that were easy to find in the August 31 adult services section:
———–

– SEXXY MIXXED CARAMEAL BARBIE! OUTCALL SPECIALS ALL DAY & NIGHT! – w4m – (sf bay area) pic

– ….. Hot …… *( INDEPENDENT )*……..*Blonde*……..*Babe*…… – w4m – (Rohnert Park, Santa Rosa, in*out) pic

– NEW______! * ! G E N T E L M E N’ S___#1___C H O I C E ! * !_______NEW – w4m – (dublin / pleasanton / livermore) pic

–~*/**/~*~*~*~*~*~*~ Gina ~*~*~*~* gReAt sErViCes ~~*~~*~~*~~*~~ – w4m – (sunnyvale)

✦NeW✦ hOtT✦ bArBiE✦ w4m – w4m – (SaNtA cLaRa✦SUnNyVaLe✦SaN jOsE) pic

————-

It’s time for Craigslist to get out of bed with businesses that sell sexual services. Founder Craig Newmark and CEO Jim Buckmaster will sleep better.-ps

* *A kiss is just a kiss, but a First Amendment Kiss is FAC’s honorific for those who, by their acts, words, or example, strengthen the claim for freedom of speech, for transparency in government, and for political accountability. Our First Amendment Kiss-Off is reserved for those persons and institutions who, whether out of distrust of citizens or undue deference to special interests, threaten to curb robust debate and exclude the public from the councils of government.  Please help us find deserving recipients of the First Amendment Kiss, and Kiss-off, awards. You can submit nominations here.

A big First Amendment Kiss** to the Los Angeles Times and reporters Jason Felch, Jason Song and Doug Smith for their recent stories about LA public schools. The Times applied statistical analysis to seven years of student test scores in order to measure teachers’ effectiveness in math and English instruction. Using an outside consultant to parse student test data obtained under the California Public Records Act, the Times’ created and published online a database of “value-added” ratings of 6,000 third-through-fifth grade teachers and 470 elementary schools.

The Times’ number-crunching of student test scores, tied to individual teachers, does what the LA Unified School District had refused to do–not because administrators didn’t want the information, but because of resistance by teachers unions and their political allies. In effect, the Times’ reporting bypassed the education establishment to provide directly to parents comparative information they can use to evaluate their kids’ teachers and to hold their schools and the education bureaucracy accountable.

In the culture war of attrition over education reform, this was a big development.

Not surprisingly, the Times stories have generated a lot of heat. The LA teachers union called for a boycott of the newspaper and said the planned publication of the teacher database was a “reckless and destructive move.” Academics friendly to the status quo attacked the Times’ statistical methodology–which focuses more on students’ improvement (or lack of it) than their absolute scores–as unreliable

Also weighing in: the American Federation of Teachers (urging the local union to be more flexible) and Obama administration Education Secretary Arne Duncan (saying the Times’ analysis is valuable both to parents and teachers). The LA school district, after some initial hesitation, announced it wants to use the Times’ analysis as part of the evaluation of teachers, a change that will require a renegotiation of the union contract.

The Times coverage, by creating and disclosing valuable information, strengthens the voice of the public interest in an institution long controlled by special interests. It is an example of  public service journalism at its best. –Peter Scheer

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* *A kiss is just a kiss, but a First Amendment Kiss is FAC’s honorific for those who, by their acts, words, or example, strengthen the claim for freedom of speech, for transparency in government, and for political accountability. Our First Amendment Kiss-Off is reserved for those persons and institutions who, whether out of distrust of citizens or undue deference to special interests, threaten to curb robust debate and exclude the public from the councils of government.  Please help us find deserving recipients of the First Amendment Kiss, and Kiss-off, awards. You can submit nominations here.

BY PETER SCHEER—If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson’s hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing–for the entire country–a constitutional right of gay marriage. But Judge Walker’s decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Judge Walker’s decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker’s courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8′s supporters.

Although the defenders of Prop 8 were ably represented in Judge Walker’s courtroom by conservative litigator Charles Cooper, they may lack legal “standing”–a constitutional requirement in federal suits–to appeal Judge Walker’s decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker’s decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state’s interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor law Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson’s legal strategy is gay Californians’ last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown’s pursuit of short-term political advantage jeopardizes that strategy.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. http://www.firstamendmentcoalition.org

BY PETER SCHEER–The New York Times’ front-page stories on the war in Afghanistan–based on a massive leak of classified US military cables and other documents–are not likely to change the course of the war. But they represent a sea change in the way journalists report on national security.

The records for the Times’ articles, which inevitably invite comparison to the “Pentagon Papers” of an earlier generation and an earlier war, were supplied to the Times not by a government source, but by wikileaks.org, a shadowy and stateless website specializing in publishing sensitive records leaked anonymously from the files of governments and corporations.

Why wikileaks?

If necessity is the mother of invention, the gestation for wikileaks began in Washington DC on June 17, 2005. That is the day the Supreme Court declined to hear appeals from court orders compelling journalists from Time Magazine and the New York Times to reveal the identity of a source–Lewis “Scooter” Libby, we later learned–whom the reporters had promised confidentiality.

The  Supreme Court’s inaction laid bare the vulnerability of American journalists to the coercive power of  federal judges who are determined to extract information for a grand jury or trial.  Most journalists can’t or won’t go to jail to protect a source. And those who would do so may find that their employer, typically a public corporation with an obligation to shareholders, doesn’t share their  commitment to civil disobedience.  Even without the intervention of courts, federal agencies conducting  national security investigations can gain access to reporters’ phone records, often without the reporters’ ever knowing about it.

Wikileaks, in short, is a response to journalists’ loss of control over their information.

Using technology both to erase leakers’ fingerprints and to place wikileaks and its files effectively beyond the reach of any one country’s judicial  process, wikileaks offers a degree of anonymity and security that, while imperfect, exceeds the capability of US media companies.

These advantages explain the unusual provenance of the Afghanistan stories. Although the source could have leaked the classified materials to a Times reporter directly, the reporter would have insisted on communicating with the source. For the Times, knowing the identity of a source is important for assessing the authenticity of leaked information and to determine a source’s motives for leaking. From the perspective of the source for the “Afghanistan Papers,” however, communicating with the Times would create an undue risk of exposure. The source therefore chose to give the records to wikileaks; wikileaks gave them to the Times.

The upshot is that the Times ran its stories apparently without knowing the identity of its source. That may be a first for a major Times article on national security. It won’t be the last time this happens.

Wikileaks, for its part, has been shrewd in its dealings with news organizations to disseminate the “Afghanistan Papers.” It could have published the documents initially on its website, as it has in the case of past leaks, and then invited the press to write about them. But  making the records universally available would diminish their value in the eyes of the Times and other  news organizations. No reporter wants to write the same story that 100 other reporters are writing. Reporters want special access.

Wikileaks provided the files to three news organizations: The Times, Der Spiegel in Germany and The Guardian in Britian. This special access gave each paper sufficient incentive to invest heavily in the story–assigning top reporters and editors to the daunting task of authenticating, analyzing, and making sense of thousands of cables. Also, the rivalry among the three organizations assured that all would run the stories prominently and that the Times in particular would be under competitive pressure to resist efforts by the Obama administration to persuade it to cancel or delay the articles.

This unusual collaboration worked. The stories in the Times, The Guardian and Der Spiegel shed new light on the role of Pakistani intelligence, the extent of civilian casualties,  Taliban military capabilities and other matters. Although wikileaks has been sharply criticized for posting raw files containing the names of some Afghani informants, the news organizations did not make that mistake.

As long as serious news organizations are unable to protect confidential sources and information, they will need wikileaks–just as wikileaks needs them.

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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition (FAC). In early 2008, FAC helped organize, and participated in, a successful legal challenge to a federal court injunction against wikileaks. Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980 (ND Cal 2008).

BY PETER SCHEER—For public employee unions–those representing police, firefighters, teachers, prison guards and agency workers of all kinds at the state and local level–these are the worst of times.

Despite record high membership and dues, and years of unparalleled clout in state capitols, public sector unions find themselves on the defensive, desperately trying to hold on to past gains in the face of a skeptical press and angry voters. So far has the zeitgeist shifted against them that, on one recent weekend, government employees were the butt of a Saturday Night Live skit, followed, the next day, by a New York Times magazine cover article proclaiming the “Teachers’ Unions’ Last Stand.”

Public unions’ traditional strength–the ability to finance their members’ rising pay and benefits through tax increases–has become a liability. Although private sector unions always have had to worry that consumers will resist rising prices for their goods, public sector unions have benefited from the fact that taxpayers can’t choose–they are, in effect, “captive consumers.”

At some point, however, voters turn resentful as they sense that: (1) they are underwriting, through their taxes, a level of salary and benefits for government employment that is better than what they and their families have; and (2) government services, from schools to the DMV, are not good enough—not for the citizen individually nor the public generally—to justify the high and escalating cost.

We are at that point.

In California, government sector unions, once among the most entrenched and powerful labor groups in the country, mainly have themselves to blame. For most of the post-war period, they were a force for progressive change, prospering by winning over public support for their agenda.

In the 1970s and 80s they backed laws like the Public Records Act and Brown Act to make state and local government more transparent. Because unions enjoyed broad-based political support, efforts to enhance government accountability and responsiveness to voters were seen–correctly–as benefiting the unions and their members.The public interest and public employees’ interests were aligned.

But the unions switched strategies. Although the change was gradual, by the 1990s California’s government unions had decided that, rather than cultivate voter support for their objectives, they could exert more influence in the Legislature, and in the political process generally, by lavishing campaign contributions on lawmakers. Adopting the tactics of other special interest groups, government unions paid lip service to democratic principles while excelling at the fundamentally anti-democratic strategy of writing checks to legislators, their election committees and PACs.

While not illegal (in fact, such contributions are constitutionally protected), the unions’ aggressive spending on candidates puts them on the same moral low ground as casino-owning tribes, insurance companies and other special interests that have concluded that the best way to influence the legislative process is to, well, buy it.

Public unions in California turned distrustful of voters and ambivalent about government transparency. In the mid-1990s unions backed improvements to the Brown Act, California’s open meeting law, but also inserted a provision assuring that the public would have no access to collective bargaining agreements negotiated by cities and counties—often representing 70% or more of their total operating budgets—until after the agreements are signed.

What happens when voters and the press have no opportunity to question elected officials about how they propose to pay for a lower retirement age, healthcare for retirees’ dependents, richer pension formulas and the like? The officials make contractual promises that are unaffordable, unsustainable (and, in general, don’t come due until after those elected officials have left office). In the case of Vallejo, in northern California, this veil of secrecy, and the symbiotic relationship it fosters, has led to municipal bankruptcy.

The biggest blow to unions’ public support has come from revelations about jaw-dropping compensation and pension benefits. Police have received unwelcome attention for budget-busting overtime and the manipulation of eligibility rules for “disability pensions,” which provide higher benefits and tax advantages. Other government employees, particularly managers, have been called out for “pension-spiking:” Using vacation time, sick pay and the like to boost income in the last years of employment, which are the basis for calculating retirement benefits.

Such gaming of the system boosts starting pensions to levels that can approach, and even exceed, employees’ salaries. Some examples from the reporting of the Contra Costa Times’ Daniel Borenstein: A retired northern California fire chief whose $185,000 salary morphed into a $241,000 annual pension; a county administrator whose $240,000 starting pension was 98 per cent of final salary; and a sanitary district manager who qualified for a $217,000 pension on a salary of $234,000. At a time when most Californians anticipate an austere retirement (if they can afford to retire at all), government pensions are a source of real voter anger.

The harm to the credibility of public employee unions from these excesses is made far worse by the unions’ attempts to hide them. The revelations about pay and pension abuses have surfaced only as a result of lawsuits. (Disclosure: The First Amendment Coalition has been a plaintiff in several of these cases.) Public employee unions, rather than taking the lead to stop abusive compensation practices, have vigorously opposed disclosure of individual employees’ salaries and pension amounts.

Public employee unions need to reboot. The old strategy of cynically buying political influence and excluding the public from decision-making has run its course. Unions can rebuild public support by recommitting to an agenda of open government in the public interest. If they don’t, they will be further marginalized.

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.

BY PETER SCHEER—In the beginning there was the internet. It was raw, ungovernable and vast in its multiplicity of voices. Then came the Apple iPhone (and more recently, the iPad), offering a curated internet experience, using “apps” vetted by Apple for conformity to company standards for content and quality.

Millions of Apple i-device users inhabit a gated community within the internet’s urban sprawl–an Ozzie-and-Harriet neighborhood that is free of graffiti, explicit sexuality, and disrespectful satire of American political figures and institutions. Apple, through its control of the apps available for downloading on the iPhone and iPad, is taming the internet to a degree that would make Chinese censors envious.

A bit overwrought, to be sure. Still, this characterization reflects the deeply-felt suspicion among segments of the online community, including many long-time fans of Apple CEO Steve Jobs, that Apple’s dominance of the smart-phone market—at a time when internet use is shifting worldwide from PCs to hand-held devices—represents a threat to free speech.

Is there any basis for this fear? Not really.

Apple is not a government censor. Despite Apple’s considerable and growing power—it recently displaced Microsoft as the world’s most valuable tech company—Apple is a private firm and, as such, it cannot infringe free speech rights. Governments, in their law-making and execution of the laws, have a monopoly in that department.

In fact, from a First Amendment perspective, Apple’s selection of apps for downloading on iPhones and iPads—the very activity for which it has been drawing fire—is constitutionally protected. Like a magazine’s choice of articles to publish, and an art gallery’s decisions about what works of art to exhibit, Apple’s choices of apps for the iPhone are an exercise of editorial discretion. So far as the Constitution is concerned, Apple, as a private entity, is under no obligation to make these choices in an ideologically neutral or “fair” way.

But that’s not the end of the inquiry. Some First Amendment principles are also enforced though antitrust laws, which can be used to contest actions by private firms that restrict competition by limiting consumer choice. According to reports, the Justice Department’s antitrust division is already investigating Apple’s online music sales and strategy for beating back competition from Amazon. An extension of that inquiry to an antitrust challenge to Apple’s business practices in the smart-phone market is not far-fetched.

An antitrust suit would be based on the claim that Apple has achieved a monopoly in the smart-phone market. While that status may have been lawfully obtained, the government would argue that Apple’s market power, and in particular its choke-hold over the market for apps that run on iPhones and iPads, require that Apple curtail practices that limit consumer choice or block competitors.

If this sounds familiar, that’s because a legal challenge by the U.S. Justice Department against Apple would be a replay of the titanic battle a decade and a half ago between the Justice Department and Microsoft. The government then claimed that Microsoft, because of its monopoly over PC operating systems and control of the desktop, had to be subjected to curbs on practices that limited consumer choice—in particular, the choice of internet browsers.

Although the government won its case against Microsoft, time has vindicated Microsoft’s argument that antitrust regulation is pointless in an industry characterized by rapid technological change. Microsoft stressed that even dominant firms are powerless to suppress competition when they are at constant risk of losing their markets to a new and disruptive technology that is exploited by a new and disruptive competitor.

Google, which did not even exist at the time of the Microsoft antitrust trial, is the disruptive competitor that Microsoft’s argument prophesied. Google’s internet-based office applications are free substitutes for Microsoft’s pricey Word, Excel and Powerpoint products. Google’s success in its core search engine business has marginalized Microsoft’s many internet ventures. Google is Microsoft’s nightmare.

But back to Apple. . . . Just as Google defanged Microsoft’s alleged monopoly in operating systems, Google poses a competitive threat to Apple’s iPhone business—and that threat undercuts any potential legal claim, based on the antitrust laws, against Apple.

Google’s answer to the iPhone is the “Android” operating system for smart-phones. By licensing Android, free, to multiple handset producers and cell phone service providers; by providing incentives for producers of apps; and by creating apps that capitalize on Google’s strengths in search, voice recognition, and translation technologies; Google has achieved a credible market presence in a short time.

Competition between Google and Apple should assure that consumers will have choices. If Apple persists in rejecting apps merely because they make fun of public figures, for example, the rejected apps should be available on the Google platform (and vice versa). That is the best we can hope for. It is also a better outcome than anything that might be achieved through litigation.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.

BY PETER SCHEER—Search warrants have always been a blunt instrument for finding evidence of crime. Think of television cop shows from the 70s and 80s: A police search of an apartment for drugs was, de facto, a license to ransack all closets, cabinets and dressers. A warrant to seize a letter or other specific document was a green light to overturn desks and dig through all files and writings, no matter how personal.

But on a scale of intrusiveness, the threat to personal liberties posed by search warrants in the pre-digital era was trivial compared to the virtual strip-search that a warrant has become today. This is illustrated by the ongoing investigation into Apple Computer’s loss, and eventual recovery, of a super-secret prototype for the next-generation iPhone, which ended up in the hands of Gizmodo, a gadget blog, after the blog reportedly paid $5,000 to the person who found the missing phone.

Jason Chen, an editor-reporter for Gizmodo (which is owned by Gawker Media), returned home after dinner last Friday to find San Mateo County Sheriff’s deputies hauling away his computers, external hard drive, cell phones and digital camera–all on the authority of a search warrant, requested by the San Mateo District Attorney and approved by a Superior Court judge, for evidence of unspecified crimes related to the missing iPhone. Imagine the disruption caused by this search and seizure of virtually every document, file and byte of data in Chen’s possession, from emails to phone numbers to calendar entries and working files.

For you, me and most professionals, a loss of this magnitude would be crippling, essentially bringing one’s work to a complete halt for the duration of a police examination in which government agents have access, not only to business records, but also to one’s most private files (medical and financial records, communications with family members, etc.). But for journalists, particularly investigative journalists, the loss would be catastrophic.

This is so because journalists obtain sensitive information–about government, big corporations, other powerful institutions–from inside sources who, for reasons good and bad, will disclose the information only if their role in releasing it is never revealed. Journalists must be able to promise confidentiality to these sources. Equally important, journalists must be credible in these representations–their sources must be persuaded that the journalists not only intend to keep their promise of confidentiality, but that they are able to keep it.

Use of a search warrant against journalists is devastating because it demonstrates that they can’t keep that crucial promise—it is beyond their power. And the damage is not confined to the journalist who is the subject of a warrant, but extends, logically, to all reporters who have confidential sources. In this sense the Apple iPhone case is not about Jason Chen and Gizmodo. Their ethical and legal calculations about paying a news source, or the importance of their “scoop” (relative to the harm to Apple’s business), are beside the point. The iPhone investigators’ use of a search warrant highlights a grave threat to independent journalism generally.

It didn’t have to be this way.

The DA could have, and should have, served Chen with a subpoena for records relating to the iPhone story. Use of a subpoena, unlike a warrant, gives the recipient an opportunity to hire a lawyer, to consider his options, and to assert any defenses or privileges that might be available. Even if those arguments fail, and the reporter is ordered to produce records and information, the harms from a search warrant–including the jeopardy to journalists’ access to confidential sources–are avoided.

For these reasons, two laws, one federal and the other a California statute, require prosecutors’ use of subpoenas, rather than a warrant, to obtain information from journalists in criminal investigations. Less clear, however, is whether this prohibition applies if Chen or Gizmodo are targets of the criminal probe, as some bloggers speculate they may be (although the DA has given no clues about their status, and criminal charges would seem to be a stretch under the circumstances).

The federal law, The Privacy Protection Act, may bar search warrants in this type of investigation even if the prosecutor is planning to charge journalists with crimes. That application, however, may be vulnerable to the constitutional argument that the privacy law exceeds Congressional power to dictate state judicial proceedings.

Perhaps there is a more mundane explanation for the failure to use a subpoena in this case: The DA may have been under intense pressure (from whom? Steve Jobs?) to act even before he could convene a grand jury to issue a subpoena. If so, the DA may come to regret his haste: If a court rules he shouldn’t have used a warrant, the government’s possession of evidence seized from Chen’s home may undermine any possible prosecution of other, more culpable, parties.

This article was first published on cnn.com
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Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a California-based nonprofit that advocates for freedom of speech and government transparency. http://www.firstamendmentcoalition.org

BY PETER SCHEER—Forty-six years ago, the Supreme Court announced its decision in New York Times v. Sullivan, rewriting centuries of “common law” on libel and defamation, in order to boost constitutional protection for criticism of government policies and government officials. One of the most important free speech decisions in Supreme Court history, New York Times was heralded by constitutional lawyers and First Amendment advocates as an occasion for “dancing in the streets.”

Fast forward to January 21 of this year: The Supreme Court released its decision in Citizens United v. Federal Election Commission, striking down campaign finance rules restricting independent political advocacy by corporations (and, by implication, unions too). The Court’s 5-4 decision, grounded squarely on the First Amendment, overturned two of the Court’s own decisions, and sharply narrowed the constitutionally permissible scope of laws (both federal and state) designed to curb the influence of money in politics.

Among constitutional lawyers and free speech advocates, the much-awaited Citizens United decision has caused great consternation–instead of dancing in the streets, a wringing of hands and gnashing of teeth. But the legal intelligentsia are mistaken. Although misgivings about the Court’s unleashing of corporate spending in elections are understandable, Citizens United may be the most consequential First Amendment decision–in terms of expanding free speech rights–since New York Times v. Sullivan.

Citizens United elevates the status of political speech–expression about public issues, candidates, and the political process–to a place that is first among equals in First Amendment jurisprudence. The new decision places a huge, nearly insurmountable, constitutional barrier in the way of laws restricting speech, particularly political speech, on the basis of the legal status of the speaker.

To appreciate the impact of Citizens United, consider, as one example, the decision’s implications for nonprofit organizations. Nonprofit charitable and educational organizations (so-called section 501(C)(3) nonprofits, because they are exempt from tax under that provision of the federal tax code) are subject to onerous limitations on their political expression and activities. Under the tax laws, nonprofits are forbidden to endorse or oppose a political candidate. Violation of this rule can result in the loss of exempt status–a death sentence for most nonprofits.

Other kinds of political expression—from speeches and articles endorsing legislation, to general advocacy on political issues of the day—are subject to varying degrees of restriction. Because of unclear and shifting standards, politically active nonprofit organizations, whether on the left or right, must practice self-censorship: Avoiding many controversial issues altogether because of uncertainty about what the IRS’ censorship code (my term, not the agency’s) actually proscribes.

Worse, this censorship code today enforces an editorial timidity in the news media. Not the legacy media, nearly all of which are for-profit (or try to be), but among the increasingly important “dot-org” news outlets launched in the last two years and organized as section 501(C)(3) nonprofits: Pro Publica, Texas Tribune, Voice of San Diego, MinnPost, Chicago News Cooperative, Bay Area News Project, and California Watch, among others. Despite their considerable and growing journalistic clout, these news media have been editorially neutered by government content controls—including the prohibition on candidate endorsements—that would make the Founding Fathers roll over in their graves.

Although restrictions on nonprofits’ political advocacy have been upheld by courts, Citizens United supersedes those decisions. After Citizens United, only the most compelling justifications can overcome the First Amendment ‘s presumption against restrictions on political speech predicated on a speaker’s legal status. The justifications for the IRS rules don’t come close.

The subsidy created by tax-exempt status—the primary consideration in earlier cases—is plainly an insufficient justification in an economy where, for better or worse, most industries enjoy direct or indirect government subsidies. In the media industry, for example, traditional newspapers are subsidized through sales tax exemptions and restrictions on competition for legal notices; television and radio are subsidized through the federal government’s decision to give away scarce spectrum space; the internet is subsidized by limitations on taxation of online commerce. Yet no one would suggest for a minute that these subsidies would justify government-imposed restrictions on political advocacy.

Restrictions on nonprofits’ political advocacy are popular with Congress. Why? Because members fear that most nonprofits, if freed to advocate for candidates and legislation, would tend to support challengers over incumbents (and legislative “reform” over the status quo). From a First Amendment standpoint, however, this is a reason to strike down restrictions on nonprofits’ political advocacy, not to maintain them. Congressional self-preservation is hardly a constitutionally acceptable justification for censorship.

The Citizens United decision is a First Amendment game-changer. The decision’s hostility to restrictions on political advocacy may have regrettable effects in the campaign finance arena (although I’m inclined to think that such concerns are overblown). Nonetheless, outside that context, Citizens United has the potential to advance First Amendment protections as significantly as the Supreme Court’s New York Times decision nearly a half-century ago.

A test case to invalidate IRS restrictions on nonprofits’ political advocacy could be the first demonstration of the power and promise of the Supreme Court’s Citizens United decision.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. www.firstamendmentcoalition.org.

BY PETER SCHEER–Google’s high-stakes confrontation with China’s government has entered a new, and uncertain, phase. Making good on its threat to cease censorship of search results on its China-based site, Google.cn, Google has begun redirecting users in China to its uncensored Chinese-language site based in Hong Kong, google.com.hk.

China’s censors now face a difficult choice. They could move quickly to block access, within China, to the Hong Kong site. This is not a problem for them technically: China’s internet “firewall” routinely blocks access to Google-owned Youtube, to Twitter, Wickipedia and many other sites deemed a potential threat to the government’s capacity to preempt and contain dissent.

The problem for Chinese authorities, rather, is political. Never before has the government, in its regulation of internet content, cut off access to a website regularly used by so many of its own citizens. Past censorship decisions have involved denying access to websites used only by small numbers of Chinese. The Chinese people, for the most part, have been unaware of what the government does not let them see. (And the few who do know, often belonging to academic and government elites, can maintain their access using proxy servers and other technical work-arounds.)

This is different. China’s internet market is so vast that, even though Google ranks as the country’s Number 2 search engine (with a market share of approximately 35 percent), Google users in China number some 140 million. This means that the decision to cut off access to google.com.hk would be a decision to tell 140 million citizens that they are no longer trusted to view an information source to which they have had, since 2005, essentially unrestricted access.

Although internet users in China may be vaguely aware that they are permitted to see only a redacted version of the internet, this would be the first time that users, by the millions, will know what it is that the government forbids them to see. And having seen it, many could question the legitimacy of the government’s censorship policy. This is the prospect–unprecedented in modern China–that must be giving government authorities pause.

My prediction, for what it’s worth, is that, because of these considerations, China will decide not to block all access to google.com.hk. Instead, it will choose the less confrontational strategy of slowly crippling Google’s Hong Kong-based website.

China will manipulate the firewall to degrade the site’s performance. Uncensored search results will be available, but only for Chinese users willing to wait extra seconds compared to Baidu.com and other “domestic” Chinese search engines operating, under censorship, inside the firewall. Under these circumstances, Google’s market share in China will decline steadily until the company is no longer a relevant player in the market.

This is China’s ultimate leverage over western internet companies trying to do business in China while locating servers for their websites outside the firewall. In degrading the performance of such companies’ websites, China assures that the firms cannot be competitive in China–unless they agree to play by China’s rules, chief among them being rules requiring self-censorship.

China’s government will be betting that, by gradually undermining Google in this way, it can exclude Google from China without having to contend with 140 million disgruntled Google customers.

Here’s hoping the censors lose their bet.

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Peter Scheer is Executive Director of the First Amendment Coalition, a nonprofit advocacy organization which has petitioned the federal government to challenge China’s internet censorship before the WTO.

BY PETER SCHEER—As California voters begin the process of selecting the next  Governor of the ungovernable Golden State, the leading candidates owe them a demonstration of their commitment to government transparency.

All politicians are supportive of open-government “in principle;”  the question is whether they are committed in practice. The best test for that is a candidate’s willingness, before an election, to  disclose information about himself that is not legally required to be disclosed–but that voters nonetheless want, with good reason, to see. 

For Republican candidate Meg Whitman, the test will be whether she decides to release her tax returns. For Attorney General Jerry Brown, presumptive democratic  nominee, the test will be whether he opens wide the door to the records of his previous governorships.

Whitman thus far has resisted journalists’ requests for a copy of her tax returns. She is, of course,  within her rights, legally, in doing so. But in 2010 that is not a right on which a candidate can stand and still expect to be competitive in an election for high office.

Voters’ interest in a candidate’s  tax returns is not just voyeuristic. In the case of a wealthy candidate like Whitman, the former CEO of eBay, tax returns can be a window on her character, showing, for example: whether she is generous with charitable contributions and who benefits from her giving (her alma mater? people in need?); whether she has been aggressive in the use of tax shelters to avoid tax; and how her tax rate compares with the rates that most voters pay.

These  data points are both revealing  and a matter of legitimate interest to voters. Disclosing tax returns is part of California’s political culture for governors. Schwarzenegger has released his taxes. So did Gray Davis and Whitman’s fellow eBay millionare, Steve Westly. If Whitman’s tax returns contain information that is embarrassing, all the more reason to release them now, before public attention focuses on the governor’s race. An embarrassing tax return can even be spun positively—for example, as proof that Whitman is a true outsider who never planned to enter politics.

But disclose the returns she must.

As candidate for Governor, Jerry Brown has left a long paper trail. Not just his years as AG or as mayor of Oakland, but also his two terms as Governor from 1975 to 1983. But don’t go looking for the records of his governorship, which are stashed in an archive at University of Southern California in Los Angeles. Under an obscure provision of the Public Records Act (Gov Code section 6268), governors, once they leave office, have the option of locking away their gubernatorial records for a “period of 50 years or the death of the Governor, whichever is later.” 

Jerry Brown has exercised this option, which means that all the public records of his governorship–including the anti-tax groundswell that resulted in Prop 13, Brown’s opposition to the death penalty, his battles with California’s  oil companies over tax and environmental issues, and much more–are exempt from the Public Records Act.

Put aside for a moment the absurdity of California’s 50-year secrecy rule (the records of US presidents, by contrast, are closed off for only 12 years). Brown’s pledge of government transparency can’t be taken seriously as long as he continues to invoke the Public Records Act’s exemption for his gubernatorial records–records which were public while he was governor, which were  paid for by taxpayers, and which are now more than 27 years old.

In fairness to Brown, he is willing to pry open the door to these documents on a case-by-case basis. In response to the First Amendment Coalition’s record request, Brown, through his lawyer, offered to “waive the fifty-year access restriction . . . as to” the organization’s executive director, and he has done the same for several reporters. But the point is that no government official should get to pick and choose who can see public records. Selective access to information and freedom-of-information are mutually exclusive.

The test for Brown is whether, in advance of the election, he will waive–for the public generally–the 50-year exemption for his gubernatorial records, giving access to all (subject, of course, to the exceptions in the law that apply to any public records). Brown can do this with a stroke of the pen, just as he invoked the exemption in the first place. 

If he refuses, voters will not only have reason to doubt Brown’s open-government credentials. They will wonder if there’s something in the archive that he is trying to hide.
——
Peter Scheer is executive director of the First Amendment Coalition

BY PETER SCHEER–Some people have no choice but to live in a cesspool. (Consider the young protagonist in Slumdog Millionaire, leaping into a pool of human waste in order to escape a locked latrine.) But news organizations are not among them.

The cesspool that many newspapers occupy is the “Comments” sections of their websites. This is the space,  typically following a paper’s own stories and editorials, where readers have their say. If postings to that space are completely unfiltered, it is sure to be stuffed with the rants and invective of people who have too much time on their hands (and too little gray matter between their ears.)

Reading online comment sections, one can easily get the impression that bigots, psychopaths and conspiracy theorists comprise a majority of newspapers’ online readers. (Note to publishers: This is hardly a desirable demographic to show to  advertisers.) In reality, such commenters  are relatively few in number, although they are, regrettably, loud and prolific.

Sociologists will someday figure out whether these readers are bona fide nut jobs, or just average Americans transformed by the anonymity, and access to a broad audience, that the internet makes possible. My own guess is that they are the same people who, as high school students, scribbled profanities on bathroom stalls. The internet affords them, as adults, a superior surface for graffiti.

Not all newspaper publishers give free reign to miscreants in their comments section. Among those who do, however, a commonly heard rationale is that they are forced to stay their hand due to legal constraints. In this they are mistaken. It is a mistake based on common misconceptions about what the law does, and doesn’t, require in this area.

Misconception number one is that newspapers, by actively moderating online discussions, and by editing (and selectively deleting) comments, assume liability for defamatory comments posted by readers. Although traditional print publication of “letters to the editor” does carry some of these risks, online publishers of user-generated content enjoy a degree of legal protection bordering on complete immunity—thanks to a 1996 federal law, Section 230 of the Communications Decency Act.

Section 230 protects newspapers that operate  their reader Comments section as a cesspool, permitting readers to post whatever they wish, no matter how libelous or harmful. Injured parties can sue the authors of those online comments, but not the newspaper. The newspaper is shielded even if it has been given notice that statements in its Comment section are false and it refuses to remove them.

But newspapers are equally protected if they act responsibly, screening comments or editing them. Section 230 was intended to overturn pre-1996 court decisions suggesting otherwise and giving news organizations a perverse incentive to refrain from editing user-generated comments. Under Section 230, as long as editors don’t alter the meaning of a comment completely (for example, by changing a reader’s comment so that it says the opposite of what the reader posted), the newspaper will be protected.

Misconception number two is the belief that to regulate readers’ comments, enforcing rules of civil discourse on  a newspaper website, is to engage in a form of censorship—and that censorship by a news organization, if not strictly illegal, is at least hypocritical.

But this concern confuses censorship with editing. It is the role of news organizations to edit the content that they publish. Although the online venue may remove the need to edit comments for length, it does not diminish the obligation to edit for substance. The First Amendment insulates news organizations from interference by government in their editorial decisions. The independence thus established includes the right, under the Constitution, to control all content published on a paper’s pages or its website.

Reader comment sections have huge potential. Particularly in communities dominated by a single newspaper, an internet-based “letters to the editor” platform offering unlimited space, the opportunity to debate both other readers and the journalists responsible for the paper’s news stories and editorials, can reflect democratic self-government at its best.  However, this ideal can only be realized if editors take seriously their responsibility to edit.

A newspaper’s online comments section can be either a cesspool or Platonic ideal. Editors and publishers have to choose.
—–
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. Your comments–which will be screened prior to publication–are very welcome.

PETER SCHEER—The US government is not powerless to influence China’s policies for censoring the internet. As Google has taken extraordinary steps–bordering on corporate civil disobedience–to challenge China’s stranglehold on the flow of information to and among its people, the Obama administration has acted as though its hands were tied. In fact, however, the administration does have options.

One is to file a complaint with the World Trade Organization, contesting China’s internet censorship as a breach of the international trade rules to which China, as a WTO member, is subject. The US can argue that China’s “Great Firewall”–a system of filters and bottlenecks that effectively shutters the country within its own intranet–is an illegal restraint on international trade because it bars foreign companies from competing, via the internet, in the vast Chinese market.

To understand how this strategy would help Google (and Yahoo, eBay and myriad other US internet companies that have lived to regret their attempts to set up business in China), it’s important to understand that Google did not freely choose to build a vast physical presence—complete with office buildings, server farms and thousands of local employees—inside China.

Google would have much preferred to compete in China with a Chinese language version of its search service operating from servers and offices located safely beyond China’s borders (and, in fact,  Google built such a site). But Google didn’t have that choice because China’s firewall effectively prevented it. When not actually blocking access to offshore websites that authorities deem objectionable, the firewall degrades the performance of websites based outside the country.

Non-Chinese websites take extra seconds to load, relative to competing sites inside the firewall. In the online world (and particularly in the fast-growing and highly competitive Chinese market), a few seconds might as well be a few extra hours. Google’s original Chinese language site, based offshore, loaded v-e-r-y  s-l-o-w-l-y. The websites of Google’s indigenous Chinese competitors (Baidu, Sina and others) loaded instantly. Google was toast.

As much as any other factor, this performance deficit, a direct consequence of the firewall, forced Google to physically relocate its Chinese language search service inside China, where government bureaucrats could compel Google, upon penalty of withdrawal of its operating license (or worse!), to self-censor its search results. Google knew the risks of its move, and it deliberately and conspicuously sought to mitigate the risks to customers by keeping OFFshore the Chinese versions of its email business (gmail), its blogging service, YouTube and other sites consisting mainly of user-generated content.

Because of these effects, China’s firewall stands as a barrier to international trade. It halts internet commerce at China’s borders just as surely as a government regulation requiring perishable agricultural exports from the US to sit for days on China’s docks prior to transhipment to internal distribution facilities. Whether the firewall is a trade barrier that violates international treaties is for administration lawyers to argue to the WTO. The First Amendment Coalition, a nonprofit organization (of which I am executive director), has already presented detailed legal briefs on this matter to the US Trade Representative.

The advantages of a WTO strategy are considerable. WTO sanctions have teeth because they can be enforced through other countries’ raising of tariffs against Chinese exports. China in other recent trade disputes has shown it will abide by WTO rulings it disagrees with (reserving its right to request WTO rulings, to China’s benefit, in other matters). For the US government, playing the WTO card also demonstrates seriousness about curbing Chinese censorship, while confining the dispute to an international legal process and avoiding a direct confrontation with China.

Some will argue that the US government has no business pursuing a trade policy that would force China to accept a version of the internet reflecting American values of freedom of expression. I categorically reject such appeals to “cultural relativism,” often made by those who stand to benefit financially or professionally from a close, cooperative relationship with the Chinese government. Aspirations for freedom to speak one’s mind, to associate freely with others, and to criticize government policies that one views as wrong-headed, are universal.

Google’s commendable announcement that it will no longer censor Google.cn, and its threat to quit the China market, have caught Chinese government authorities by surprise, creating an opportunity to apply pressure in a way that could enhance individual liberty for millions of Chinese citizens. It is an opportunity that the Obama administration should not miss.

—
Peter Scheer, a lawyer, is executive director of the First Amendment Coalition, a nonprofit free speech organization that has petitioned the US Trade Representative to invoke WTO treaties to curtail China’s censorship of the internet. Related articles by Peter Scheer:

China and the Internet

Inside the Great Firewall

http://www.nytimes.com/2008/04/18/opinion/18iht-edscheer.1.12136850.html?_r=1

More Power to Google in China: Why Does US-Backed Baidu.com Get a Pass?
http://www.huffingtonpost.com/peter-scheer/more-power-to-google-for_b_422810.html

Are newspapers dead, dead, dead? If you can believe everything you read in them, apparently so. Hal Fuson, a veteran of 44-years in the news business, didn’t think those obituary writers had their stories straight. In fact, they were reporting myths about the dire state of the industry as though they were facts. When Fuson, who is a member of FAC’s board, recently retired from Copley Press, decided to set the record straight. “I had a few things to get off my chest,” Fuson writes, “So I agreed to be interviewed by a journalist I trust: myself.”  –df





Unloading the Chest

by Hal Fuson

Description is revelation. It is not
The thing described, nor false facsimile.
It is an artificial thing that exists,
In its own seeming; plainly visible,
Yet not too closely the double of our lives,
Intenser than any actual life could be…
-Wallace Stevens, “Description Without Place”

“For the real environment is altogether too big, too complex, and too fleeting for direct acquaintance. We are not equipped to deal with so much subtlety, so much variety, so many permutations and combinations. And although we have to act in that environment we have to reconstruct it on a simpler model before we can manage with it. To traverse the world men must have maps of the world.”—- Walter Lippmann, Public Opinion: The World Outside and The Pictures in Our Heads.

Harold W. “Hal” Fuson retired recently after 44 years as a newspaperman. Like many retirees, he has a few things to get off his chest, so he agreed to be interviewed by a journalist he trusts: himself. The interview was conducted in his home office in Encinitas, California where he found himself with his feet up on his desk drinking his second coffee of the day.

Q. You don’t play golf. Why in the world would you want to be retired?
A. People don’t take you seriously when you tell them you are unemployed, so mostly it’s just a matter of semantics. Let me make clear that I am not looking for another job. If people find out you’re both unemployed and looking for a job, they’ll never take you seriously.

Q. You seem to want people to take you seriously. Why?

A. I’m always interested in new experiences. Being taken seriously would certainly qualify.
Q. As I understand it, you took over management of a business with decades of unbroken success at cash flow rates of better than 20 pct. and in two years reduced the revenue by about 40 pct. and the cash flow to almost nothing. Then you sold it for a tiny fraction of what it was worth just five years ago. Why would anyone take you seriously?
A. Probably they shouldn’t.
Q. Tell us a little about your career.
A. When I retired on June 30, 2009, I was the executive vice president and chief operating officer of The Copley Press, Inc., which for over a century had been in the newspaper business in California and the Midwest. Prior to that job, I was the company’s general counsel for almost 25 years. Before that I was with the Los Angeles Times. Early in my career I spent over a decade as a journalism teacher. Just to show you that I wasn’t one of those media executives who didn’t understand the Internet, here’s a hotlink to a more detailed resume on my LinkedIn site.

Q. Does the company still exist? What happened to its newspapers?
A. The company still exists and I remain on its board. My last contribution, if you can call it that, was to negotiate the sale of its flagship newspaper, the San Diego Union-Tribune. The sale closed in May, 2009. The company still owns real estate and other assets unrelated to newspapers and continues to operate with a small headquarters staff.

Q. Newspapers are dead, dead, dead. Right?
A. I don’t think so, but if I was able to answer that question unequivocally, I could also have foreseen the collapse in their revenues that began in 2007.

Q. Yes, but lots of smart people knew that newspapers were dying years ago, right?
A. Those are the same people who predicted 38 out of the last two recessions. You give enough monkeys enough typewriters, you get Shakespeare, or, at least, John Grisham.

Q. Okay, so maybe not a lot of people foresaw just how quickly the Internet was going to destroy you. But it did, right?
A. The Internet is not their friend, but it didn’t destroy newspapers. Partly because newspapers aren’t destroyed and partly because a number of factors conspired to crash the market for advertising, especially print advertising.

Q. But everything I read in the newspapers says they are dead, dead, dead. Can’t you believe what you read in the newspaper.
A. Generally what you read in newspapers is true enough, certainly more true than what you hear on MSNBC or Fox News. There is, however, a certain inherent bias in all media that smart readers have to adjust for. Here, let me give you a brief lecture:

The nature of journalistic narrative drives much of our thinking about the state of newspapers. Newspapers employ far more journalists than any other medium and these journalists are endlessly fascinated not only by their own navels, but also by their own stomachs and the revenue stream that feeds them. Journalists think quite a bit about where their bread is coming from and what they think about they often write about. Other media aren’t blessed by a plethora of journalistic stomachs of their own, so their content is driven largely by the news judgments of media that do have journalists, namely newspapers. In addition to the special hazards of journalists writing about themselves, all journalism is, after all, journalism — it focuses on what’s new, sometimes to the detriment of larger truths. The combination of navel-gazing and the requirements of the journalistic form reinforces certain myths and inevitably leads to over-simplification.

Q. Hmm. That’s a mouthful. So, you’re suggesting that readers have to apply a little, uh, Kentucky windage to whatever they read?
A. Yeh, you could put it that way. Bottom line is that journalists, like all of us, are especially untrustworthy when talking about themselves. Here are some examples of myths that newspapers help propagate about themselves: The Myth of Money-Losing Newspapers; The Myth of Shuttered Newspapers; The Myth of Paper and Ink as a Dead Medium and the Myth of a Newspaper Golden Age.

Q. Those sound like topics for more lectures.
A. Yes, so let’s start with the first one:

The Myth of Money-Losing Newspapers
Stories abound of newspapers in bankruptcy or facing sale or closure because newspapers don’t make money any more. There has been a huge hit to newspaper profits in the last two years, but the great majority probably remain profitable on a cash operating basis. It’s hard to be sure, because newspaper companies, even the public ones, don’t often publish income statements for individual newspapers. Those newspapers that have reported losses may be including substantial non-cash losses, e.g. amortization of purchase price and other capital expenditures. And even those newspapers that are draining cash today probably could be operated on a cash positive basis if their owners were willing to make the necessary and painful changes required to reduce costs, often in the face of powerful union opposition. But the operating costs aren’t the cause of those bankruptcies you’ve read about. It is the cost of acquisition debt that has sunk Tribune Company and the owners of the Minneapolis Star-Tribune and the Philadelphia Inquirer, and is threatening to capsize McClatchy. In each case, the owners simply incurred far more debt to acquire their newspapers than the operations can now support. The newspapers published by these companies are likely still profitable, if only barely so, on a cash operating basis.

Q. Are you suggesting that the owners were fools to pay those prices, like the reported $600 million that was paid for the Star-Tribune?
A. No more foolish than the millions of Americans who were paying too much for houses during the same period. The newspapers, by the way, just like the houses, are almost all still standing, which leads me to the next lecture:

The Myth of Shuttered Newspapers.
A powerful theme of much of the journalistic narrative is that newspapers are closing in major cities. In fact, only three major cities have lost newspapers in the last few years and in each case there is a surviving metro newspaper serving those communities. The closed newspapers are in Seattle, Denver and Tucson, each of which was part of a joint operating agreement that had kept alive “failing newspapers” under the terms of the Newspaper Preservation Act, a 1970 law that exempted certain operations from federal antitrust laws. At last count, according to Wikipedia, there were six surviving joint operating agreements — 22 have ceased to operate. One of the survivors is in Detroit, which last year stopped home delivery of print newspapers on Mondays, Tuesdays and Wednesdays. By definition, a joint operating agreement is a device for saving an editorial voice that would otherwise be stilled by the effects of economic competition — they don’t work very well as business propositions and the numerous critics who opposed the act at its inception may well have been right. The important point is that what happens to newspapers in JOA’s tells us almost nothing about the overall state of the industry.

Q. You seem to be suggesting that newspapers are going to be fine and that all the “Sturm und Drang” of the last few years has been pointless.
A. John Sturm is the president of the Newspaper Association of American. Sturm’s a good fellow, even if he does sound like a radio voice of the 1950s. I don’t believe I’ve met Drang. But to answer your point, not at all. Newspapers are never going to be the same again and that’s not, repeat not, a good thing. I’ll get to that in a minute. First, let’s prick another myth.

The Myth of Paper and Ink as a Dead Medium.
Too bad Bill Gates didn’t invent paper and ink: he’d be much richer. The notion that paper and ink as an engine of communication is as dead as the buggy whip has yet to be proven, even though it was first posited with the advent of radio in the 1920s. Sturm’s predecessor at the newspaper association was all over that one trying to stifle radio before Rush Limbaugh was born. Unfortunately, he failed. Prophets have been foretelling the imminent disappearance of paper and ink for many decades now, but still it persists, the Kindle and iPad notwithstanding. Newspapers remain the only medium capable of landing on your doorstep in a complete, neatly wrapped paper and ink package every morning within a few hours after the presses start. The medium itself is conducive to presentation of information in a coherent, consistent, orderly way that doesn’t scatter attention the way the web does. If newspapers can deliver value to advertisers, and there is every reason to believe that’s true, especially as this recession ebbs, there is no reason to think paper and ink will die.

Q. Good, because otherwise I’m not sure what I’d wrap my fish with. Although I do feel guilty about all those old-growth trees and spotted owls you killed in your career.
A. That’s another subject, but let me at least interject that very few old-growth trees end up as fish wrap. Newsprint comes mostly from wood by-products and tree farms, as well as recycled paper, and is one of the easiest commodities to recycle. If you do your part to keep old newspapers out of the solid waste stream and into the recycling bin, you don’t need to feel guilty about using a superior medium to inform yourself about public issues, at least not as guilty as you should feel about driving a car, even a Prius with refitted brakes.

Q. Any more myths?
A. Yes, and this is an especially big one for people like me who first got ink in their veins in the 1960s.

The Myth of a Newspaper Golden Age.
Newspapers may have experienced something of a golden age, from, say, 1968 – 2005, but it was much shorter than most people think and occurred for structural reasons related to a much longer-term decline in newspapers’ position in the information marketplace. Throughout most of American history, most newspapers were partisan rags. That was true of the Los Angeles Times until Otis Chandler became its publisher in 1960. Others were commercial notice sheets much needed by shippers and traders, but priced outside the reach of ordinary citizens. The shift to the Golden Age blessing of objective, independent down-the-middle reporting in which I was fortunate to spend my career, occurred primarily for economic reasons, not moral ones. When you’re the only newspaper in town and your success depends on delivering eyeballs to advertisers the last thing you want to do is alienate half of your potential readership.

Q. You mean Woodward and Bernstein were just helping line up advertisers to fatten the Graham family’s bottom line?
A. Not at all. They are true American heroes, even if Bernstein is a bit boorish and Woodward’s subsequent prose is somewhat windy. They did wonderful work. There have been scores of others like them and there still are. Also, some very brave owners, like the Grahams, who have taken a lot of heat at the country club and elsewhere that less stalwart entrepreneurs would not have.

Q. It’s too bad nobody’s reading their work any more, at least not in the newspaper.
A. Hate to do this, but that’s another lecture. People still do read paper and ink newspapers.

The Real Story of Newspaper Readership.
Newspapers have been shrinking as a proportion of the larger information market since at least the introduction of radio. First, competing dailies, which existed in even the smallest markets, began to succumb to mergers with stronger competitors, then, especially after WWII and the advent of television, afternoon dailies gradually disappeared. By the 1970s, few markets supported more than one daily newspaper. The “penetration” of newspapers, the number sold divided by the population, has been declining for 100 years and in recent years each paid circulation reporting period is greeted by further exclamations of dread about the future of the medium. The exclaimers don’t take into account the extent to which newspapers, as an advertiser-driven medium, are adjusting their circulation patterns to reflect the needs of advertisers. Newspapers seldom make back the cost of manufacturing and distribution on the circulation revenue from the sale of each newspaper. As their profits have been squeezed, newspapers have reduced their circulation territories, sometimes massively, and sharply reduced promotion costs, including everything from advertising and contests to price discounting. Those reductions have been especially harsh in the advertising collapse of the last two years.

Q. You give all these lectures, but you don’t say much about the Internet, which is why newspapers are dead, dead, dead. Remember? And, as a result, isn’t democracy going to Hell?
A. Democracy has always been a messy business. We only stick with it because we haven’t found any better way to organize peaceful societies. Maybe I’ll eventually get round to talking about why the Internet is a problem. First, though, here’s why, as a citizen, I applaud it.

The Failure to Acknowledge the Power of Offsets.
Everyone acknowledges the importance to democracy of readily available reliable information about public issues. Newspapers have long been viewed as the primary source of such information, even if most citizens have for decades named television as their main source for news (as one of my reporter friends told me, that’s like saying you get your food from your refrigerator not the grocery store or the farm). Whatever television’s shortcomings as a tool of democracy, there’s no denying the power of new digital tools for spreading and analyzing information. Much of the hand-wringing about the demise of newspapers fails to take into account the alternative vehicles that are filling the vacuum. There is more than enough information available, mostly for free, through a simple Internet connection to enable anyone to participate at a very high level in civic affairs. Admittedly, much of this information is created by newspapers and others whose business models are no longer generating levels of revenue sufficient to guarantee the free flow of information will continue. Much of it, however, comes from sources that didn’t even exist a few years ago. Some of the web sites devoted to the Supreme Court are a good example. Anyone can have at his or her fingertips almost every document available to the justices as they consider their cases. Many of these vehicles are unproven or fall short in obvious ways of replacing the best reporters, but it is awfully hard to argue that the information available to those who want it today is less than it was in the past.

Q. You really do sound like a man who doesn’t care whether newspapers live or die.
A. Since I don’t believe they are actually going to die, I don’t waste a lot of emotion on the subject of their deaths. I am concerned about their lives, however, and here’s why: Newspapers may not die, but as a class they have undergone a radical shrinkage in resources available for aggressive news coverage and community leadership. Real damage has been done and seems unlikely to abate. Newspapers and their owners have gone from naming hospitals and leading civic reforms, to a future in which most of them may be little more than Earl Scheib franchises. A perfectly good place to get your clunker cheaply repainted, perhaps, but hardly a community institution of substance. No one that I know of has ever named a hospital or an arts center after Earl Scheib, although according to Google to get to the Youngstown Children’s museum you pass a Scheib paint shop and turn past a hospital. It is fair to ask whether an Earl Scheib newspaper can be expected to routinely achieve results like putting your local Congressman in jail. My colleagues at the San Diego Union-Tribune did exactly that a couple of years ago. In order to stay afloat financially, I was forced subsequently to preside over the dismantlement of our Washington bureau, whose members did most of the legwork on the story. The new owners have only accelerated similar cuts. An industry made up of Earl Scheib newspapers will be hard put to continue to act as an advocate for the rights of citizens to be informed participants in a democracy.

Q. You don’t seem to have a very high opinion of Mr. Scheib.
A. I’m sure he’s a fine fellow, if he exists. But I suspect his business never threw off the kinds of profits that local newspapers did in the heyday of the last half century. He can’t afford luxuries like a squad of private detectives to run down the culprits that caused the damage he is painting over. He doesn’t have enough money left over from running a business in a hotly competitive market to endow hospitals. On the other hand, he probably never engaged in any of the shameless boosterism or local political and social shenanigans than some publishers have been prone to over the years.

Q. Are you implying that providing the news is a luxury newspapers can’t afford?
A. No. Newspapers without news aren’t going to do very well, but unfortunately, readers don’t necessarily discriminate between 25 cent news and two dollar news; the $1.75 delta contains a lot of luxury that newspapers have been busily throwing out. Some of them may have even slashed below the 25 cent barrier and maybe they will kill themselves. I don’t know.

Q. So, newspaper readers are stupid, eh?
A. No stupider than the people who go to chiropractors when they have cancer. In fact, significantly above average for the population as a whole. But we’re all guilty of taking things on faith derived from past glory, and only belatedly getting around to figuring out present dysfunction.

Q. What is to be done?
A. The main thing that we as citizens need to do is to keep our eye on the ball, to reckon with a picture of the world that is as close to reality as possible. We can’t afford to be distracted by nostalgia for ways of doing things that never existed quite the way we remember them and certainly don’t exist that way today. We can’t make informed decisions about the future based on warped or outdated versions of the past or the present. Best thing you can do is read a newspaper or two every morning; trust what you read, but cut the cards.

Q. That’s it?
A. No. There’re a couple of other things that come out of my years as a lawyer for news organizations. I don’t think government financial support for journalism is a good idea, but there are some government actions that might ease somewhat the pressure on newspapers. Here are a few that the industry has advocated.

• Removal of legislative restrictions on consolidation across media– the only thing dumber than a newspaper buying a television station is the federal rule that bars it from happening. Eliminate the newspaper/broadcast cross-ownership rules. Yesterday.
• Antitrust exemptions to permit joint pricing of internet content. This may be a little too close to the DNA of the Newspaper Preservation Act, but given the monopoly power of Google in the market for search advertising, it’s worth trying.
• More favorable tax policy — that California continues its sales tax on newspapers while eliminating it on snack foods boggles the mind, but I can’t see it changing. Like it or not, we use tax policy to advance all manner of social policy. Why not use it to encourage newspaper readership?

I think ultimately these are half measures, worthy enough in their own right, but not the sort of thing likely to bring back the newspaper golden age in anything remotely like its former glory.

Q. Now, you’re done?
A. Just this. One last lecture:
Through the work of newspaper publishers and organizations they have supported, like the Newspaper Association of America, the California Newspaper Publishers Association and other state press associations, the Media Law Resource Center and the Reporters Committee for Freedom of the Press, the First Amendment has received massive support over the last fifty years. That support is inevitably going to decline. Just a few examples of what was achieved, conveniently compiled by Lucy Dalglish of the Reporters Committee:

• Sullivan in 1964, public officials who have been defamed have to prove the mistake was made intentionally or recklessly.
• The federal Freedom of Information Act, first introduced back in the 1950s, after it was heavily pushed by the American Society of Newspaper Editors. It took ASNE more than 10 years and lots of money to get that law. There is not a single state open meeting or records law anywhere in the country that was not shepherded through the statehouse by the media — usually local newspapers.
• Nebraska Press Association v. Stuart in 1976. It stands for the proposition that if you learn something in an open courtroom, a judge can’t gag you from reporting it.
• Richmond Newspapers v. Virginia in 1980. It says the public has a First Amendment right to attend criminal trials except in the most extreme circumstances.
• The two Press Enterprise v. Riverside cases in California in the mid-1980s. They stand for the proposition that the public can’t be kicked out of pre-trial hearings or jury selection.
• New York Times v. United States, the Pentagon Papers case. The New York Times and The Washington Post led the effort in 1970 to make clear that, except under the most extreme circumstances, government may not censor information via a prior restraint on speech or the press.

Today, the resources available to mainstream news organizations for advocacy in the courts and legislatures are already a fraction of those available even two years ago. Fewer actions will be brought for access under state open meetings and records laws and the federal Freedom of Information Act. Fewer lawyers will bother judges with motions for access to proceedings or records, because the news media will no longer have the resources to pay for them. The pressure on public lawyers to take seriously routine requests for access has already significantly abated. Most of these lawyers, by the way, were much more receptive to public access than their government official clients. Without the potential of lawsuits backed by fee awards, the incentive for public agencies to err in favor of secrecy has greatly expanded.

Citizens, lawyers, judges, legislators, all of whom have been heard to grumble about nosy journalists impeding their grand schemes and precious privacy, are facing a choice. Either they must recognize the importance of public oversight and public access and do their part to protect it or face the consequences of their self-imposed darkness.

Q. Wooo! Nothing like leaving with a leap onto the soapbox.
A. Actually, I made that all sound a little more dire than I think it really is, because I’m hopeful that the Internet and other tools ultimately provide their own sanitizing techniques that will ultimately trump the forces of darkness. See lecture #6 above. But you can never be sure about technology.

PETER SCHEER—It’s hard to imagine a video of lawyers debating points of constitutional law going viral on YouTube, but the audience for the Proposition 8 trial — a lawsuit seeking to overturn California’s voter-approved ban on same-sex marriage — is potentially vast. Unfortunately, that audience will have to wait. As the trial began, the U.S. Supreme Court issued an emergency order blocking its broadcast.

Our camera-phobic Supreme Court, which took this unusual step by a 5-4 vote,  is making a mistake. Public access should be encouraged, not thwarted, in court cases involving controversial and divisive issues–all the more so when judicial power is invoked in an effort to invalidate the voters’ choice in an election. Although some Supreme Court justices worry that cameras in the courtroom will undermine the legitimacy of the judicial process, the reality is just the opposite.

The Prop 8 trial is a case in point.  Partisans on both sides of the same-sex-marriage issue are accustomed to a political process coarsened by ideological rhetoric and political posturing. If they are allowed to view the Prop 8 trial,  they will be surprised by what they see:  a decision-making process that is generally devoid of politics, in which a thoughtful and independent-minded judge asks hard questions of both sides’ highly qualified lawyers in search of legal rules reflecting neutral principles, not political fiat.

At a time when most Americans have lost confidence in government’s ability to act in the general interest, the potentially huge online audience for the Prop 8 trial would see evidence that at least one branch of government tries to make decisions on the merits. Ironically, the televising of the Prop 8 trial, under the procedures adopted by US District Judge Vaughn Walker, would have conferred legitimacy on the proceedings as nothing else can.

Legitimacy matters, both institutionally and practically. If, in the end, Judge Walker upholds Prop 8, rejecting challenges to its constitutionality, opponents of of the law will feel angry and aggrieved, to put it mildly. But, had they been allowed to view the trial online, they would not feel that they had been victimized in a process that was politically rigged.

Prop 8′s defenders also argued to the Supreme Court  that television coverage would infringe their right to a fair trial. They claim that release of videos on YouTube would expose Prop 8 trial participants to harassment. In fact, the concern about harassment is not trivial: some financial contributors to the Prop 8 campaign were harassed following voter approval of Prop 8 in November 2008. Much as I disagree with their position on same-sex marriage, harassment does infringe their First Amendment right to participate in the political process.

But that was then. In the Prop 8 trial Judge Walker has anticipated this problem and took steps to  minimize the risk of harassment. Under the camera access procedures adopted by the judge (and rejected by the Supreme Court), the district court would have controlled the video cameras to assure certain witnesses could not be seen by the online audience. (Broadcast of the video also was to have been delayed.)

In any case, most trial participants in the Prop 8 camp are people who, because of their prominence in the electoral campaign, have chosen to have a high public profile on the issue of same-sex marriage. They expect to be recognized and identified with this issue. They have, or should have, thick skins.

Their First Amendment right to join the political fray must be balanced against the public’s First Amendment right to know what transpires in the Prop 8 courtroom. There can be no secret justice in the American judicial system. Courts must be open to assure the parties receive a fair trial and to give the public the necessary confidence that the laws are applied justly.

To be sure, the First Amendment doesn’t require public access by means of television broadcast or online distribution. But when a trial judge  exercises his discretion to open the courtrooms to cameras in a high-profile and important case, the Supreme Court should defer to that choice. It strengthens the system of democratic self-government and it strengthens the legitimacy of the courts.

Although the Supreme Court may have had the last word on the televising of the Prop 8 trial, its heavy-handed intervention ups the odds that Congress will enact legislation that at least permits–and conceivably could require–unrestricted camera access in federal civil suits.

Peter Scheer is FAC’s executive director. This column appeared first on CNN.

BY PETER SCHEER—It’s not every day that a public corporation engages in what amounts to civil disobedience. But that, in effect, is what Google has done in halting censorship of search results on Google.cn–the Chinese language version of Google that is available inside China–in defiance of China’s laws.

More power to Google. Its unilateral action, coupled with the threat to withdraw from the country if necessary, creates an awkward situation for Chinese officials. However, the impact would be vastly greater if China’s government faced, not just one internet search engine determined to reject censorship, but a united front consisting of both Google, the number 2 player in the Chinese market (with a 36% share), and Baidu, the leading search engine (with a 58% market share).

Baidu is often described in the press as China’s “home-grown” internet portal and search service, as though its native parentage somehow explains the company’s reported pliancy in acquiescing to government censorship demands. In fact, however, Baidu’s financing is as American as the dot-coms of Internet 1.0.

Baidu received its initial funding from American venture capital firms, including Draper Fisher Jurvetson and IDG Technology Venture. (Google itself was an early-stage investor, but sold off its interest in Baidu as it was deciding to expand into the Chinese market). Baidu was taken public by American investment banks and law firms. Its stock (symbol: BIDU) trades on the NASDAQ exchange. And it is today majority-owned by institutional investors with names like Fidelity and Morgan Stanley.

Not surprisingly, Baidu’s stock rose sharply on news of its competitor’s confrontation with Chinese government authorities.(Google’s stock declined, but not much). Baidu’s American investors will reap a windfall if, as seems plausible, Baidu soon finds itself a monopolist in the business of internet search in the world’s biggest internet market. But should they?

From a traditional business standpoint, the answer is clearly yes. But from a standpoint that assigns a high value to corporate integrity, Google’s action may reveal a better strategic path. A Baidu that has ambitions beyond China’s borders could have greater long-term value if it is not seen as doing the bidding of China’s bureaucrats.

While online reaction to Google’s announcement ranges from digital hallelujahs to the criticism that Google should have stood up to China long ago, Baidu and its American investors get a free ride. This is puzzling, especially since inaction by Baidu is not merely a position of neutrality, but greatly strengthens the government’s hand in its dealings with Google.

Imagine an alternate scenario in which, say, Silicon Valley VC Bill Draper, whose firm once owned as much as 28% of Baidu, organizes major US investors to pressure Baidu’s Board to stand together with Google against China’s censors. That would be extraordinary—corporate civil disobedience squared.

China in that scenario would face a most unpleasant choice: To allow its walled-off version of the internet to lose much of its value as essential infrastructure for economic development; or, to give up substantial control over what its citizens can, and cannot, see.

Baidu should follow Google’s example. But don’t hold your breath.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition, a nonprofit advocating free speech and government transparency. FAC has petitioned the US Trade Representative to use international treaties to curtail China’s censorship of the internet.

BY PETER SCHEER — The courts in California are often criticized for being out of step with the rest of the country. A willingness among judges to deviate from national orthodoxy is not necessarily a bad thing, however.

Just this week the administrative arm of the California Supreme Court adopted a rule providing public access to administrative records of all state courts, making California the first state to adopt  a legally enforceable “freedom of information” mandate for its judiciary.

Although records filed in adjudicated legal proceedings (civil suits and criminal prosecutions) have long been open to the public, the public has had no comparable right of access to the judiciary’s administrative records–that is, the types of records that courts, in their administrative capacity, possess in common with, say, the Department of Motor Vehicles, the Franchise Tax Board, or any other government agency. Until now.

Under the new access rule, which takes effect January 1, you will be able to request records showing the exact compensation of court employees or reimbursements for judges’ professional expenses. You will be able to obtain a copy of vendor agreements entered into by the courts, or examine detailed financial statements and budget information. Still off limits, of course, are records of the courts’ internal deliberations in adjudicated cases.

The access rule borrows heavily from the California Public Records Act (CPRA), and, to a lesser degree, from the federal FOIA and the access law for the California legislature. Although the rule won’t please everyone–and despite ambiguities in a few provisions that could have been avoided by importing more of the CPRA’s language—the final version is a marked improvement over earlier iterations, having benefited from a drafting process which was itself commendably transparent. And, of course, any right of access is better than none.

Prodded by the state Legislature, the judiciary has, in effect, surrendered its exempt status under the CPRA.  While other state courts and all federal courts remain hidden behind a legal screen of FOI immunity, California’s courts are wagering that greater transparency will result in more public confidence in their work and enhanced support for the principle of judicial independence.

It’s a good bet.

Also this week the US Ninth Circuit Court of Appeals, the federal appellate court that covers California, broke ranks with other federal circuits in announcing that it would allow cameras in selected federal trial court proceedings. The new policy will apply to civil cases only (camera coverage of criminal trials is barred by a federal rule applicable to all US district courts) on an experimental, case-by-case basis.

Timid though it is, the Ninth Circuit’s cameras initiative is audacious by judicial standards. It  will be seen as an injudicious middle finger salute of the Judicial Conference, the federal courts’ rulemaking arm, which (with the Supreme Court’s presumed blessing) has vigorously enforced the no-cameras policy. Just this year,  district court judges in Massachusetts (the federal First Circuit) and Illinois (Seventh Circuit) had their hands slapped for opening courtroom doors to cameras.

The new Ninth Circuit policy is timely: Among the first California cases to which it is likely to apply is the civil rights lawsuit challenging Prop 8, which is before Judge Vaughn Walker, Chief Judge of the San Francisco district court. One can hardly imagine a better test case for demonstrating the benefits of camera access: A smart, no-nonsense judge (a Republican appointee, but with distinctly libertarian leanings);  first class lawyers, both experts in constitutional litigation, who know how not to play to a television audience; and a hugely important legal dispute of interest to viewers of both Fox News and the Colbert Report.

Federal judges’ aversion to televised trial court proceedings is directly traceable to the all-too-public travesty of the OJ Simpson trial. Many judges who had been open to allowing cameras in the courtroom developed a severe and enduring camera-phobia after the Simpson trial. The Prop 8 civil suit may be the perfect antidote.
—–
Peter Scheer, a lawyer and journalist, is executive director or the First Amendment Coalition.

BY PETER SCHEER—-Attorney General Jerry Brown has taken the first formal steps toward declaring himself a candidate for Governor of California. He is, or soon will be, the deja vu candidate in a race to become the deja vu governor.

What kind of governor would Brown be? While the resumes of most candidates provide, at best, an ambiguous guide to the policies they would pursue if elected, Brown has a track record that is uniquely relevant to the inquiry: the voluminous archive of gubernatorial papers from his two terms as governor, from 1975 to 1983.  In assessing Brown’s strengths and weaknesses as a future governor, what better place to look than the full, candid and unvarnished record of how he governed the first time around?

Incredibly, the public has no right to view these documents, which are stored in the library archives of the University of Southern California.  Under a 1988 amendment to California’s freedom of information law, gubernatorial records are off-limits to the public for a period of fifty years (or the death of the governor, “whichever is later.”) (Gov. Code Sec. 6268). The only exceptions are for speeches, extradition requests and certain other previously public materials (which are maintained by the Secretary of State). Brown’s gubernatorial records will remain secret until the year 2038.

That is, unless Brown chooses to make them public.

Fifty years of secrecy for gubernatorial records is an insanely long time to deprive the public of gubernatorial “public records,” all created at citizens’ expense and on their behalf. California’s half-century of secrecy is in sharp contrast to federal law. Under the Presidential Records Act,  some records of past presidents become available to the public as soon as five years after the end of a president’s term in office, and all records (unless classified or subject to privilege claims) become public in twelve years. (44 U.S.C. 2201)

If Presidential records enter the public domain after twelve years, no state can possibly justify extending confidentiality to its ex-governors’ records for a longer time. Presidential records, after all,  are far more likely to contain sensitive information concerning security, diplomatic relations or similar government interests. Yet California law maintains a blackout on its gubernatorial records for an additional thirty-eight years.

Under California’s 50-year rule, most people who vote in a gubernatorial election will be dead by the time the winner’s records become public. Ditto for the ex-governor.  Release of the records is deferred by law to a future so distant that there will be no one left to hold the government accountable for whatever misdeeds might be revealed. Sadly, that may be the real point of the law.

It’s high time the Legislature amended the gubernatorial records law to limit the secrecy term to the 12 years of the federal law (or less). But whether or not that happens, Jerry Brown will be hard-pressed to continue to seek the governorship of California while denying the press and public access to the vast records of his first two terms in that job.

Brown has the discretion under the law to provide open, unrestricted access. Will he do it?

—–

Peter Scheer is executive director of the First Amendment Coalition. The Coalition has submitted a public record request for Attorney General Jerry Brown’s gubernatorial records. The request asserts access rights under both state law and the First Amendment.

BY PETER SCHEER — Attorney General Jerry Brown’s spokesman Scott Gerber was unceremoniously “disappeared” from Brown’s incipient gubernatorial campaign this week because of a lapse in judgment that, quite frankly, has been overblown. Gerber’s mistake: to surreptitiously record a  phone conversation with a reporter,  which was later discovered because Gerber, in a plea for changes to the story,  presented an editor with verbatim quotes too extensive and accurate to be the result of efficient note-taking alone.

Gerber should have asked the reporter, Carla Marinucci  of the San Francisco Chronicle, to consent to the taping of the interview–which involved, at Gerber’s end of the conversation, two other Brown aides who were also participating in the phone call. The undisclosed taping of a phone conversation with a journalist is viewed as sleazy and a breach of journalistic protocol.  But it is not necessarily illegal, contrary to the assumptions of many journalists.

California law prohibits the recording–without consent of all parties–of a “confidential communication.” (CA Penal Code Sec. 632(a)(emphasis supplied)). Journalists have been taught by lawyers over many years that they should avoid all nonconsensual taping of interviews. But lawyers are overly cautious by nature.

To anyone who has ever been interviewed by a journalist, it is obvious–in retrospect, perhaps painfully so–that, absent an agreement that the conversation is “off the record,” the comments of the interview subject are anything but confidential.

Talking to a reporter on the phone (or in person) is about as open and nonconfidential  an exchange as sitting for a live television interview or typing into a blog on a public, unrestricted website. The whole point of a conversation with a print journalist is to provide her with information to be communicated to her paper’s entire readership. A genuinely confidential communication with a reporter is the rare exception, not the rule.

The sleaze factor that is associated with surreptitious taping derives, I suspect, from the historic revelations about Richard Nixon’s taping of conversations, with both friend and foe, in the Oval Office. Before Nixon gave the practice a bad name, many journalists taped interviews (with or without consent) in order to create the most accurate record possible, not to engage in a game of “gotcha” with sources. Watergate changed the rules of appropriate journalistic inquiry.

The prevailing presumption today is that interviews are not recorded unless all parties to the conversation explicitly agree otherwise. Although this presumption may be a bit quaint in the YouTube era–in which celebrities are always at risk, in public settings, of having a candid moment converted into an embarrassing video that goes viral online–it is, in fact,  a presumption strictly observed by all serious journalists.

As it should be.  Ethically speaking, there is no adequate reason to tape secretly. But it’s important to bear in mind that undisclosed taping by a journalist–or by the person being interviewed by a journalist–is rarely, if ever,  illegal.

———-

CORRECTION
As several readers pointed out in emails to me, I overstated my case in saying that the surreptitious taping of an on-the-record phone conversation between a reporter and a news source is “rarely, if ever illegal.” In 2002, in a case that did not involve a journalist, the California Supreme Court, interpreting section 632, held that a communication is confidential if one party to a phone conversation has “an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v. Flanagan.

Although it is questionable whether the Court would reach the same conclusion today in a media case,  journalists should desist from secretly recording conversations not only for ethical reasons, but because such behavior could expose them to a potential criminal charge under section 632.  As for Gerber, AG Brown’s spokesman? His recording, while sleazy, is still legally ambiguous, in my view, because of the presence of other Brown aides on the call. That factor is inconsistent with the idea that any participant reasonably expected that the conversation was not “overheard.”–Peter Scheer

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Peter Scheer is Executive Director of FAC.

BY PETER SCHEER—As I read about the latest contractions in the newsroom of the New York Times (100 reporters and editors) and the San Francisco Chronicle (investigative reporting staff–gone), the question occurs: Why are universities across the country continuing to churn out journalism graduates? Do they know something that the rest of us don’t? Do they have some reason to believe that demand for academically-trained newbee journalists is about to stage an extraordinary recovery?

Job openings for graduates of all professional schools have fallen sharply in the last year. Lawyers, accountants, engineers, newly-minted MBAs and teachers are in excess supply in a cyclically depressed economy. But there is reason to expect that those markets eventually will recover, even if they don’t return to the growth levels of the recent past. Journalists, however,  face bigger obstacles. Traditional news media will continue to shed jobs, even in a general recovery, faster than digitally-based replacements for those businesses can be invented and built.

One explanation for journalism schools’ still-open doors is that surviving news organizations are looking to them to provide professionally trained, but cheap, labor to  replace veteran journalists whose skills and experience no longer justify their premium cost. Under this theory, journalism school education  is substituting for the de facto apprenticeships that news organizations used to maintain to train their new journalists.

But if so, it’s fair to ask whether this is really a function that journalism schools should be providing. Does it make sense for them to be subsidizing the accelerated dislocation of one generation of their graduates to make room for a younger generation of their graduates?  In the investment world this is called a Ponzi scheme.

Another explanation is that most journalism school students (whether they know it or not) are really headed to careers in public relations–for which demand will, in time, recover–rather than journalism. Fair enough, but journalism school is not (and never has been) the appropriate background for PR. This is not a criticism of the PR profession. Public relations specialists, like lawyers (a club to which I belong), lobbyists and ambassadors, are all professional advocates. Being an effective paid advocate of a client’s point of view has absolutely nothing to do with journalism, other than perhaps the writing of press releases (a skill that can be learned in about 20 minutes).

One thing is clear: Journalism Schools that continue to operate as such need to focus their energies on teaching their students, as future journalists, the skills necessary to fully exploit the journalistic applications of digital technologies. I’m talking about more than posting videos to YouTube or tweeting the headlines of daily news stories. Any 12-year-old in America can now do that.

The challenge is to adapt the skills of enterprise reporting to an online environment in which creative exploitation of digital media is an essential and integral aspect of the story, not an after-thought. More than a clever headline and powerful photos, the possibilities of online technology have to be integrated fully into the reporting–something that can best be done, in the first instance, by the journalist writing the story, not the techies in another building who run the paper’s website.

Time is running out. Bill Keller, the brilliant Editor of the New York Times, confessed in a talk to some of his staff last month that he has only recently begun to experience the Times mainly in its digital format. This notwithstanding that most of the Times’ readers today view the paper on the web rather than in print; that virtually all of the Times’ readership growth in the last ten years has been online; that five years from now, ten at the outside, there will not be a print edition of the New York Times–which is true whether or not the paper resumes charging for online access (which I think it should do, but that’s another column).

Hopefully, an all-digital Times will still have an edit staff of over one thousand reporters and editors located around the world providing an intelligence and depth of news coverage that is unparalleled and stands as a model for all other news organizations. But that won’t happen if the journalists persist in viewing the web as merely a paperless replacement for the paper’s traditional print distribution.

Therein is the opportunity for our best journalism schools and their future graduates.

——-

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. This commentary also appears on the Huffington Post, here.

BY PETER SCHEER—On Monday, Washington Post investigative reporter nonpareil Bob Woodward caused a tremor inside the Beltway with an exclusive account of  Gen. Stanley McChrystal’s 66-page report to President Barack Obama, warning that without the deployment of more US troops, the administration’s Afghanistan policy will fail.

There has followed the usual Washington parlor game of pundits and journalists speculating about who leaked the report to Woodward, and why.  By Tuesday the ascendant theory was that the report was leaked by Pentagon insiders who support McChrystal’s call for additional troops and are annoyed at the White House for seeming to delay action on the General’s recommendation.

Could be. But what caught my eye was the copy of the redacted report that ran with the Post’s story. Download the file and you won’t see excerpts of a classified document intended for the President’s consumption. Rather, you will see what appears to be an officially declassified version of that report, with multiple deletions of presumably classified material indicated by the term “REDACTION” in caps.

Woodward, in his story, says this about the provenance of the document:

“Senior administration officials asked The Post over the weekend to withhold brief portions of the assessment that they said could compromise future operations. A declassified version of the document, with some deletions made at the government’s request, appears at washingtonpost.com. ”

Now, it’s not unheard-of for government officials to be given an advance look at a Woodward blockbuster so they can have a chance to alert him and Post editors to information, not necessarily essential to the news story, whose revelation could compromise intelligence “sources and methods” or otherwise harm bona fide national security interests. And maybe that’s all that happened in this case.

But it is odd, and I think highly unusual, for the government, as a result of such an exchange, to provide a reporter with an officially declassified edition of the report, “with some deletions made at the government’s request,” to use Woodward’s words, for publication in a newspaper or on a newspaper’s website.

Classified documents are not declassified by leakers acting anonymously, they are declassified by identifiable government officials acting with authorization. That means the document was given to Woodward either by the White House or by a Defense Department official acting at the direction of the White House and almost certainly with Obama’s approval.

So, why would President Obama want to “leak” this report to Woodward?

—–

Peter Scheer, a lawyer and journalist, is Executive Editor of the First Amendment Coalition. www.firstamendmentcoalition.org

Welcome to our new website. In addition to a new home (and address) on the internet, we are also announcing our new name. Instead of “California First Amendment Coalition,” the name given this organization at its birth in 1988, we are now just “FIRST AMENDMENT COALITION.” We shrunk our name to confirm our expanding role in First Amendment litigation and policy, and to acknowledge the diminished relevance of any state’s borders in an era when information published in, say,  Eureka, CA is available instantly and everywhere via the internet.

The First Amendment Coalition (“FAC” or “the Coalition” for short)  for many years has been involved in legal matters, including federal appellate cases, whose effects extend beyond California’s borders. More recently we have worked to curtail the Chinese government’s censorship of the internet, petitioning the Office of the US Trade Representative to challenge China’s “Great Firewall” as a violation of international treaties enforced by the WTO.

In the past month we filed an amicus brief in Citizens United v. FEC, a closely-watched case in the US Supreme Court whose outcome could profoundly change the constitutional rules governing Congress’ and the states’ regulation of campaign finances. And just this week, in a case before the Court of Appeals for the US fifth circuit (based in Texas), we filed our own amicus brief to defend local government open-meeting laws, like California’s Brown Act, from a potentially devastating national legal challenge.

But make no mistake: California remains at the top of FAC’s priorities, even if it’s no longer in our name. Just this week FAC joined with the Modesto Bee in filing suit against Stanislaus County to compel disclosure of the amounts of pension payments to retired county employees–information needed by the paper for its reporting on county governance and finance issues.  And that’s just the latest of the many cases in California in which we will be participating–striving to defend California citizens’ right to know–in the months and years ahead.

Without slackening in any way in our commitment to government transparency and free speech in the Golden State, FAC will continue–with your help–to expand the reach and range of its activities in order to be as effective as we can be. Your support is crucial. Please take a minute to make a (fully tax-deductible) contribution at the FAC website, or mail us a check to:

FAC
534 4th Street #B
San Rafael, CA  94901

Thanks for your interest and support.

–PETER SCHEER, Executive Director