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On a recent Saturday, local high school teacher Tony Nipert deboarded a MetroLink train at the Central West End station while enjoying one of his favorite hobbies: exploring St. Louis. As he exited the train, he decided to snap a quick photo of the train departing toward downtown and pulled out his phone.

After taking a quick shot of the moving train, he decided to take one more photo because the newly refurbished station was looking so good.

I love how the buildings kind of rise up out of the station. So I got back at a distance, and at this point nobodys on the platform, recalled Nipert, who at the time was working on a piece for Next STL about how MetroLink is safer than many people think. Its kind of empty except for the two security guards. And I take a big landscape photo of it.

About two seconds after he nailed his shot, Nipert told St. Louis on the Air, a security guard yelled at him.

She said, Who are you taking a photo of? And I said, Oh, Im taking it of the platform, and I gestured that I was trying to do that, Nipert explained.

While Nipert shrugged off the interaction as no big deal (he quickly apologized and left), he added that he was surprised to learn Metro Transit wouldnt want people taking photos of the transit system which he thinks of as part of the public commons.

I thought to myself [that] maybe theyve got some rules about customer privacy or something and theres a worry about something like that, he said.

Evie Hemphill

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St. Louis Public Radio

In fact, Metro does list rules on its website for photography and video along the transit system. While the agency notes that such images are fun ways to commemorate your trip on Metro, it notes that such activities may be limited for security, safety or customer convenience.

The transit agency outlines separate rules for journalists and commercial photographers, saying that such people must first contact the Metro Communications Department for approval.

And its that distinction that raises concerns for Lisa Hoppenjans, assistant professor of practice and director of the First Amendment Clinic at Washington University School of Law.

A policy that singles out journalists and treats them differently than sort of anyone else who could take a photo with the same type of equipment with a cellphone camera like we all have that is concerning, she said. Because under the law, the courts will look very skeptically at restrictions that vary based on the content of the speech.

Photography is a form of expression, and as such falls under First Amendment rights enshrined in the U.S. Constitution.

In particular, if you are in a public place, you generally have a right to take photographs of things that are plainly visible, Hoppenjans said Tuesday on St. Louis on the Air. So here, on the government-controlled Metro [platform], this is a public place it sounds like what [Nipert] was photographing was clearly visible. And so as a general rule, the First Amendment would protect that.

Even so, Hoppenjans acknowledges that such rights are not absolute there can be reasonable time, place and manner restrictions, such as rules against tripods. But simply having an individual take a few photos in a nonobtrusive, nonobstructive way, it certainly is questionable that [Nipert] was asked to stop that. A journalist should have the same freedoms, she said.

Photos, public space and the 1st Amendment

Listen as host Sarah Fenske talks with Wash U's Lisa Hoppenjans and as listeners as well as the head of Bi-State Development and the general counsel of the National Press Photographers Association share their perspectives.

Taulby Roach, president and CEO of Bi-State Development, which oversees Metro Transit, provided a statement to St. Louis on the Air on Tuesday morning, emphasizing that the agencys photo and video rules are designed to keep everyone safe.

We dont want anyone to accidentally get knocked down or off of a MetroLink platform while trying to avoid a camera crew or trying to attract the attention of a reporter, Roachs statement read in part. He also noted that security team members are trying to keep everyone safe and although they are trained about the photo and video rules, they do get confused on occasion, and for that we apologize.

Its not just governmental entities that sometimes try to tell would-be photographers what they cant do in a public setting, noted Mickey Osterreicher, general counsel of the National Press Photographers Association. He said restricting access is a big issue for his members these days.

We are dealing with this around the country all the time. There are people now, unfortunately, that think that they have some reasonable expectation of privacy when theyre in a public place, Osterreicher said. And I cant tell you how many times we hear from our members that people at demonstrations when theyre out there protesting, where part of it is being seen and heard they tell people, You cant take my picture.

Hoppenjans noted that while someone does not need your consent to take your photograph" in a public place, there are restrictions on what you can do with a strangers photo. You cant go use it in an advertisement without their consent, for example, she said.

But if youre using it in the context of news reporting or a similar type of use, that is generally going to be protected.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Photos, public space and the 1st Amendment - St. Louis Public Radio

This is an opinion column

Brookside the tiny hamlet outside of Birmingham now infamous for its interstate patrols, aggressive policing and possibly phantom traffic citations might have more to worry about than just Lt. Gov. Will Ainsworths call for an official audit or national news outlets focusing their attention on the town of fewer than 1,300 people.

And thats because the town, by way of its police force and now former Police Chief Mike Jones, may have violated the First Amendment rights of those who complained about arrests, tickets and other traffic stops.

As John Archibald reported Thursday, the Brookside Police Department apparently has a consistent practice of patrolling not just the highways of Alabama but also the byways of social media and retaliating against the departments critics. Two things really stuck out to me as a First Amendment scholar in that most recent piece: one woman, Michelle Jones, who cited a mysterious phone call from a Brookside detective claiming she issued threats, incited a riot and slandered the Brookside Police Department on Facebook and a Brookside man who said, after a similar post, an officer told him the chief was pretty upset and any more backlash like that towards his police department and itll be far worse than a ticket.

Those words should give us all pause and cause for concern at the prospect of the police powers of the state being wielded to silence speech. For while the text of the First Amendment reads, Congress shall make no lawabridging the freedom of speech, we have thankfully interpreted that to mean all agents of government acting under the color of law from the president, to the governor, to public school employees and, yes, even police officers must respect free speech rights.

However, lest anyone start shouting about fires and crowded theaters, there are certainly limits to what the First Amendment protects, and those limits include threats and incitement. It is doubtful, though, that Jones Facebook posts rose to the level of what is constitutionally actionable. Inciting a riot via Facebook sounds like a nigh impossibility, and thats not even considering the limitations under Brandenburg v. Ohio that the state can only punish speech designed to produce imminent lawless action. An online threat is more likely actionable generically, but Jones unless she posted something that a reasonable person would view as a serious expression of an intention to commit violence against the Brookside Police Department was again likely engaging in protected speech.

And if the departments staff truly feels slandered (quick point of order: they would have be libeled on Facebook, the difference there being spoken versus something published), the answer there is for a specific individual to sue Jones for defamation not to harass her via telephone.

But its that second anonymous complaint that gets at the real heart of this banal evil. There is no right in this country for a police chief to not be upset about comments made publicly or to somehow escape a dreaded and terrible backlash. If the First Amendment is to mean anything if were going to have the freedom of speech in this country and in this state it has to mean that police departments cannot threaten critics of their official conduct.

That last point was made clear some 60 years ago in a landmark case from right here in Alabama. In New York Times v. Sullivan, Montgomery Public Safety Commissioner L.B. Sullivan attempted to recover damages from paper after it printed a defamatory ad written by a Martin Luther King Jr. fundraising committee. While Sullivan won in Alabama courts, his judgment was overturned by the Supreme Court as it established the actual malice rule, a standard that works to protect the right to criticize public officials and public figures so long as speakers dont act with a reckless disregard for the truth.

Did Jones actually threaten, incite or defame? Did the Brookwood man bring down some nefarious shroud of untruth upon his hometown police department? Most likely not. What we appear to have is a pattern and a practice of the government silencing speech that it does not like.

And whether thats the federal government, the state government or the people running Americas most notorious (for now) speed trap, thats something we simply cannot have in our country.

Will Nevin, J.D., Ph.D., is an assistant professor and program coordinator for Communications Media at Alabama A&M University.

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Brookside PD ran afoul of good policing practices and possibly the First Amendment - AL.com

Federal government agents should not have free rein to violate the rights of the public with impunity. That's the uncontroversial premise behind a spate of petitions before the U.S. Supreme Court that pertain to law enforcement officers who breached clearly established law, and whose victims want to seek recourse.

Recourse can prove elusive, if not impossible.

The Court has yet to announce if it will hear two of those cases. The first pertains to a federal officer who devised a fake sex trafficking ring and jailed a teenage girl on bogus charges for two years. The second involves a Department of Homeland Security (DHS) agent who, outside of a bar, tried to shoot a man he had a personal issue with. Federal courts in both cases found that the two government agents violated clearly established law but are protected by absolute immunity and thus cannot be sued solely because of their status with the federal government.

But one similar case has worked its way up to the justices, who are scheduled to hear it on March 2though it appears they may be poised to make it even more difficult for victims of federal government abuse to achieve any meaningful remedy when their rights are violated.

In 2014, U.S. Border Patrol Agent Erik Egbert followed a man to a bed and breakfast where he was staying in Washington state. That man was from Turkey, and Egbert assumed the guest may have come to the U.S. illegally based on the inn's proximity to the Canadian border.

He was incorrect. But Egbert pursued the man and declined to leave the private property after its owner, Robert Boule, requested that he do so. In response, Egbert pushed Boule into a car and then to the ground, ultimately resulting in injuries to Boule's back that required medical treatment. Boule subsequently filed a complaint with Egbert's supervisor, which the Border Patrol agent countered with threats to sic the IRS on him with a business audita promise he made good on.

It's been almost eight years, and Boule has not yet had his day in court, having spent the better part of the last decade asking the government for the privilege to appear before a jury and ask for damages. Thus far, he's been successful: Both the district court and the U.S. Court of Appeals for the 9th Circuit sided with Boule and said he should have the opportunity to bring a civil suit against Egbert for infringing on his First and Fourth Amendment rights.

That shouldn't be surprising. Under a 1971 Supreme Court precedentBivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsfederal agents may be sued when they violate someone's rights. But in recent years, the high court has proceeded to dilute its own decision in significant ways, now requiring that federal agents may not be sued if a federal judge pinpoints "special factors counseling hesitation." You can see where such a subjective standard might go awry.

It was that standard that shielded Officer Heather Weyker, who conjured the sex trafficking ring, and DHS Agent Ray Lamb, whose gun jammed when he attempted to shootthe man he had a feud with. Neither one received qualified immunity, the legal doctrine that protects certain government officials from civil liability if the way in which they misbehaved has not been "clearly established" in a prior court ruling. Weyker and Lamb did violate the law, as the courts acknowledged. Yet although they were denied qualified immunity, they received absolute immunity and can't be sued simply because of their status as a federal employeesomething that should signify a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Perhaps in a testament to the egregiousness of Egbert's misconduct, he did not clear the low bar passed over by Weyker and Lamb. So he is requesting that the Supreme Court lower the bar even further. A decision in Boule's favor would "undercut the ability of Border Patrol agents to fulfill their basic mission of securing the border, enforcing the immigration laws, and protecting national security," the government wrote in its petition for review, as if immigration officers must reserve the right to assault people and weaponize their power in illegal ways in order to do their jobs effectively.

"The stakes are very high," says Anya Bidwell, an attorney at the Institute for Justice, a public-interest law firm that filed an amicus brief on Boule's behalf this week. If Egbert succeeds, "this would mean no Bivens remedy in the vast majority of cases. This would mean absolute immunity for federal police and other federal officials."

Based on the Supreme Court's recent jurisprudence on the issue, it appears that scenario may be the likely outcomegiving federal agents carte blanche to break the same rules they are meant to uphold.

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A Border Patrol Agent Assaulted Him and Violated His First Amendment Rights. He May Never Get To Sue. - Reason

The group known as Oath Keepers is a loose network of organizations made up of former military, police, fire, and first responders people who have taken oaths at some point in their lives to defend the Republic.

Rep. David Eastman is a member of the Oath Keepers, and for this, he is being hunted and hounded by Alaska House Democrats.

The Democrat majority members have for weeks been acting to remove Eastman from all of his committee assignments because of his association with the group, whose leaders await trial for their activities leading up to and on Jan. 6, 2021 in the nations capital.

The charges against Yale University graduate and Oath Keeper founder Elmer Stewart Rhodes are serious, but as of yet unproven, as his trial does not begin until April 19.

The Department of Justice charges say Oath Keeper defendants were not just engaged in mere disorderly conduct on Jan. 6 at the U.S. Capitol, but that they organized militarily well in advance to stop the peaceful transfer of power from President Donald Trump to President Joe Biden.

On Wednesday, Rhodes is scheduled to appear before the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol. The committee, formed on a party-line vote on July 1, 2021, has been subpoenaing citizens and documents ever since to testify about what they knew and in what manner they participated in the Jan. 6 surge into the Capitol. The committee has even subpoenaed numerous Trump Administration members and advisers, and people associated with other patriotic nonprofit groups, including Women For America First and Moms for America.

Among the dozens of Alaskans who also went to Washington, D.C. on Jan. 6, 2021 to attend a Trump rally and participate in a protest was Rep. Eastman of Wasilla, who stayed a good distance from the halls of Congress the entire time.

For months, socialist organizers in Alaska political circles and their Democrat surrogates in the House have been on Eastmans trail, to try to get him removed from office altogether, due to his membership in Oath Keepers.

But there just are not enough votes for him to be expelled by the House, and Plan B is to redline him from all of his committees.

That failed on Monday because there were evidently not enough votes, but the Democrats plan to take the matter up again when Rep. Sara Rasmussen returns. Although she is a registered Republican, the Democrats are counting on her vote to punish Eastman, who is somewhat of his own caucus most of the time. Rasmussen is said to be out due to quarantine and votes with the Democrat majority frequently.

If the House does act against Eastman, it will set a precedent for the Legislature to punish members for their associations with various legally recognized groups groups such as the Democrat Socialists, or Black Lives Matter.

Oath Keepers is not only a legal organization, it enjoys protection by the Internal Revenue Service as a charitable, non-taxable entity. The IRS recognizes several Oath Keeper affiliates as 501(c) groups, including:

But politically motivated groups like the Democratic Party and Southern Poverty Law Center view Oath Keepers as one of the largest far-right antigovernment groups in the U.S. today.

In a court of law, what a nonprofit political group calls another nonprofit political group is one thing, but when a group is protected by the federal government as a charitable group, its quite another.

The Alaska House Committee on Committees was planning to meet at noon Tuesday to try again to remove Eastman from committees on its roster, but abruptly canceled its meeting, which had not even been advertised on the legislative calendar. That means its likely no floor action will be taken against Eastman on Wednesday.

The dispute is spinning the wheels of the House of Representatives, which is on Day 15 of its current 90- to 120-day session. Although Speaker Louise Stutes said this session was going to be more harmonious, she chairs the Committee on Committees, and she has verbally sneered at those defending Eastman.

Democrat Majority Leader Rep. Chris Tuck on the House floor on Monday said that some rights are simply not allowed. Tuck, who has not served in the military but has sworn an oath as a lawmaker, said there are distinct curbs on peoples free speech rights.

We really dont have the right to do whatever you want. It really is the right to do whats best, Tuck said.

But Rep. Kevin McCabe said that military men and women, when they take an oath, its for life, to defend against enemies foreign and domestic.

Notice there is no expiration on that oath, Madam Speaker, he said, saying that would be important for people to remember in coming days.

Rep. Ben Carpenter, also a veteran, spoke to the importance of defending the First Amendment rights of all Americans.

One of the lessons I learned in the military, after I took my oath to defend this nation, is that the Marxist that sits in the tank next to me has the same rights that I do, Carpenter said. First among those are the right to free speech and to freely associate with the organizations that I choose.

Carpenter continued: If you can remove somebody from a position because you dont like what they say or what they think, its only a matter of time before somebody else gets removed, for some other topic.

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Alaska House Democrats are trying to take away First Amendment rights of Republican members, starting with Rep. David Eastman - Must Read Alaska

Editor's Note: This post also appears on Just Security.

The U.S. governments prepublication review process for written works by certain current and former government officials is a mammoth system of prior restraint that impacts the speech of millions. We and others have highlighted the problems with this system, including its scale, lack of adequate process, arbitrariness, violation of the First Amendment, massive chilling effect, and adverse consequences for national security.

The challenge has been figuring out a way to fix the system. Almost six years ago, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concerns with the pre-publication review process and directed the intelligence community (IC) to issue a policy within 180 days that was more consistent with due process and the First Amendment. Though the IC normally takes steps to comply with such non-legislative HPSCI directives as a matter of comity, six years later the IC has not implemented a change in prepublication policy. Another route to change litigation to challenge the constitutionality of the prepublication review system has been rare. The main reason is the widely held belief that the Supreme Court blessed the modern massive prior restraint system in the 1980 case Snepp v. U.S.

This belief is false: the Supreme Court did no such thing in Snepp. In explaining why this is so, this post and a subsequent one draw on an amicus brief that we filed in support of the pending cert. petition in Edgar v. Haines. The petition asks the Court to overrule Snepp or to clarify that lower courts should not read the decision to preclude meaningful scrutiny of the federal governments current prepublication review regime under the First Amendment. The thrust of our amicus brief is that Snepp is an illegitimate foundation for todays prior restraint system. (David Zimmer and Benjamin Hayes of Goodwin Procter, to whom we are very grateful, drafted and filed the brief, which we rely on here in part.) The first reason for this conclusion, discussed in this post, is that the Supreme Court in Snepp decided the foundational First Amendment issue in a brief footnote in the procedural history section of a shadow docket summary reversal without merits briefing or oral argument, and with other procedural irregularities. The second reason, discussed in subsequent posts, is that the illegitimate decision in Snepp became the foundation for a massively broader, different-in-kind, and worse system of prepublication review than was in place at the time of Snepp.

The Background to Snepp

The prepublication review system in place when Snepp was decided in 1980 is nothing like the one that today restricts the speech of many millions of current and former government employees. Prepublication review began in the 1950s as a small and casual system in the Central Intelligence Agency and the National Security Agency. With the increase in writing by current and former officials amidst the 1970s upheavals sparked by Watergate and the Church Commission, the CIA in the late 1970s established a Publication Review Board to review the writings of current and former agency officials. In 1980, the year Snepp was decided, only 148 publications were submitted for review.

The Snepp decision grew out of former CIA analyst Frank Snepps publication of a book about CIA activities that Snepp declined to submit to the Publication Review Board. Snepp thus defied his employment contract pledge to not . . . publish . . . any information or material relating to the [CIA], its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the [CIA]. The Government sued Snepp to enforce the agreement and obtain a constructive trust for the Governments benefit on Snepps profits. The district court enjoined Snepp from future breaches of his secrecy agreements, imposed the requested constructive trust, and dismissed in a few sentences a claim that Snepp had raised under the First Amendment. The Fourth Circuit also rejected Snepps First Amendment argument. But it declined to impose a constructive trust and reversed the district court on that issue.

Snepp filed a petition for a writ of certiorari that raised the issue of whether a system of prior restraint sanctioned by the court of appeals impermissibly burdens the First Amendment rights of thousands of government employees and the public. The government opposed the petition but filed (separately) a cross-petition conditioned on the grant of Snepps petition. The governments cross-petition stated that the contract remedy provided by the court of appeals appear[ed] to be sufficient . . . to protect the [CIAs] interest. The only reason for filing the cross-petition, the government explained, was so the Supreme Court may review the entire judgment of the court of appeals if it granted Snepps petition. The government made clear that, [i]f [Snepps] petition . . . is denied, this petition should also be denied. The constructive trust issue, the government made clear, was not independently certworthy.

Snepps Illegitimacy

What this Court did next was highly irregular, as our brief says. Three months after cert-stage briefing closed, the Court issued a per curiam opinion without oral argument and without any merits briefing. The Supreme Court summarily reversed the Fourth Circuit on the constructive trust issue that the government said did not warrant independent review, and, in a footnote in the procedural history section of the opinion, it addressed the issue on which Snepp had sought certiorari. The totality of the Courts First Amendment analysis, in footnote 3, is as follows (citations omitted):

[This] Courts cases make clear thateven in the absence of an express agreementthe CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment. . . . The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service. The agreement that Snepp signed is a reasonable means for protecting this vital interest.

These three sentences became the sole foundation of all subsequent First Amendment scrutiny of prepublication review.

What made Snepps First Amendment discussion irregular was not (just) that it occurred as a brief aside in a per curiam summary reversal on another issue (the constructive trust). As Justice Stevens explained in his three-Justice dissent, the decision contained other unprecedented elements.

Justice Stevens noted that the majority obviously does not believe that Snepps claims merit this Courts consideration, for they are summarily dismissed in a footnote. The Courts cursory treatment of the First Amendment issue, Stevens added, makes clear that Snepps petition would not have been granted on its own merits. Against this background, Stevens argued that it was highly inappropriate for the Supreme Court to grant the Governments conditional cross-petition while in essence denying Snepps petition. In other words, it was inappropriate to grant Snepps petition, which was independently uncertworthy, only to reach an issue that the government said in its cross-petition need not be reviewed, since its interests were adequately protected on other grounds. The Court had reach[ed] out to decide a question not necessarily presented to it.

The context of these untoward procedural shenanigans made them much worse, since the Court in its throwaway footnote fashioned a drastic new remedy . . . to enforce a species of prior restraint on a citizens right to criticize his government. Justice Stevens accurately predicted how the government would deploy the new reasonableness standard for prior restraints: the reviewing agency will misuse its authority to delay the publication of a critical work or to persuade an author to modify the contents of his work beyond the demands of secrecy. Justice Stevens acknowledged the national interest in maintaining an effective intelligence service and the possible need for some system of prior restraint. But he bemoaned the fact that this critical First Amendment issue was decided in the absence of full briefing and argument.

So too did Archibald Cox in the Harvard Law Review. One would have supposed that the extent of the governments authority to silence its officials and employees and thereby deprive the public of access to information about government activity was not too obvious to deserve deliberate judicial consideration, he said. Diane Orentlicher noted at the time that the majoritys summary treatment of the first amendment issues raised by Snepp and its decision to forego oral argument and briefs are particularly noteworthy in view of the fact that Snepp was the first occasion on which the Supreme Court considered the enforceability of the CIA secrecy agreement. Unfortunately, it was also the last occasion on which the Court addressed the issue. For over four decades, Snepps footnote has governed.

* * *

We have not said a word in this post, and we do not say a word in our brief, about how out of step Snepps reasonableness test is with the Courts First Amendment, and especially its prior restraint, jurisprudence. That issue is fully covered in the petition. The emphasis in our amicus brief is on the procedural context of Snepp and the decisions original legitimacy. One would think that the colossal system of prior restraint that inheres in the governments prepublication review system would have been subject to careful scrutiny from this Court, the Introduction to our brief notes. This is especially so since, as the Supreme Court has emphasized, [a]ny system of prior restraint . . . bear[s] a heavy presumption against its constitutional validity. To the contrary, as our brief explains, the federal governments publication-review edifice rests on the shakiest of judicial foundations: a footnote in the procedural history section of a case this Court decided without merits briefing or oral argument. This is one important reason why Snepps drive-by constitutional ruling should not be the last word on this vitally important issue.

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Prepublication Review and the Quicksand Foundation of Snepp - Lawfare