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So now President Donald Trumps re-election campaign is filing SLAPP suits against news organizations that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.

The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaigns tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?

SLAPP stands for strategic lawsuits against public participation. A typical example might involve a developer whos seeking to build a controversial strip mall and who files a frivolous libel suit against neighborhood critics or a small local newspaper in order to silence them. According to the Reporters Committee for Freedom of the Press, 31 states, including Massachusetts, have anti-SLAPP laws aimed at discouraging such suits. There is no federal anti-SLAPP law.

For a president's political operation to sue news organizations for libel is virtually unprecedented but not surprising coming from Trump, who said during the 2016 campaign that he wanted to open up our libel laws so that it would be easier for public figures to collect damages. The lawsuits involve four opinion pieces all of which, as Jacob Gershman notes in The Wall Street Journal, contain passages implying Donald Trump sought or welcomed Russia's intervention in the 2016 presidential election or the 2020 race.

The articles in question were written by Max Frankel, former executive editor of the Times; two Post opinion journalists, Greg Sargent and Paul Waldman; and CNN contributor Larry Noble, a former general counsel at the Federal Election Commission.

Without going into too much detail, the pieces all assert that the Trump campaign had sought help from the Russians during the 2016 campaign and that it appeared to be willing to do so again. (Noble links to an ABC News interview with Trump in which the president all but invited foreign interference in 2020.) Among other things, the Trump campaign cites the Mueller Report as evidence that there was no collusion between the campaign and Russia.

Yet the Frankel commentary was published several weeks before the mostly unredacted version of the Mueller Report was released. Moreover, U.S. District Judge Reggie Walton last week lambasted Attorney General William Barr for mischaracterizing the Mueller Report in his initial summary, writing that Barr had sought to obscure ties between the Trump campaign and Russia as well as multiple episodes of possible obstruction of justice. You could almost say that it sounds like collusion.

As for 2020, the Times recently reported that Russia is attempting once again to help Trump (as well as Bernie Sanders, according to the Post). Trumps indifference and even outright hostility to efforts aimed at curbing that influence could certainly be characterized as welcoming Russian interference.

All this is by way of arguing that the lawsuits are publicity stunts aimed at stirring up the Trumpist base. Not only are they outrageous in and of themselves, but they could also pose a threat to the First Amendment.

Im not a lawyer, but the constitutional principles at issue are well understood. First, there is the fact that the articles in question are opinion pieces. Opinion is protected by the First Amendment. As the Supreme Court put it in Gertz v. Robert Welch (1974), there is no such thing as a false idea. Of course, if you make a defamatory statement about someone that could be proven false, merely labeling it as opinion is no protection, as the court ruled in Milkovich v. Lorain Journal (1990). But the facts laid out in the Mueller Report, as well the Trump interview with ABC News cited by Noble, cut against the Trump campaign's legal argument.

More important, the three news organizations are protected by the 1964 precedent set in New York Times v. Sullivan, in which the court found that public officials would have to prove actual malice in order to win a libel suit; that standard was later extended to public figures as well. Because of the Times decision, the Trump campaign would have to show that the media outlets published the four pieces in question despite knowing or suspecting they were false. (As I wrote last year, Justice Clarence Thomas has said that he would like to weaken the Times v. Sullivan protections. But of course.)

Not only would the Trump campaign find it virtually impossible to prove that the Times, the Post and CNN knew what they were publishing was false there are mountains of evidence to suggest that what they published was true.

In other words, these are the presidential equivalent of SLAPP suits, designed solely to harass and intimidate.

So what is the solution? Judges are strongly encouraged to throw out frivolous libel suits at the earliest possible stage because of the chilling effect that they have on news organizations and others seeking to exercise their First Amendment rights. That is exactly what should happen with the Trump campaigns suits.

More broadly, the suits should serve as a wake-up call. The libel laws are intended as a way for people who have been harmed by false, defamatory statements to obtain compensation. But libel can also be used to silence critics or, in the case of the Times, the Post and CNN to discredit them in the eyes of Trumps supporters.

Not only do the courts need to throw out these suits as quickly as possible; they also must take steps to ensure that the Trump campaigns actions dont trickle down to the state and local levels, which would encourage the widespread abuse of the courts for partisan political advantage.

One possible answer: Passing anti-SLAPP laws in places that dont have them, including the federal courts. And, where necessary, strengthening them to make sure they have real teeth.

WGBH News contributor Dan Kennedys blog, Media Nation, is online at dankennedy.net.

See the original post here:
How The Trump Campaign Is Weaponizing Libel And Threatening The First Amendment - wgbh.org

The First Amendment is the foundation of all of our freedoms. That is why it stands atop our Bill of Rights, which spells out strict limits on the governments power to crush individuals and deny them their liberty.

Under the First Amendment, Congress and, by extension, state legislatures shall make no law abridging freedom of the press.

Freedom of the press has been of incalculable value to the people of the United States. It has brought to light corruption and other problems that powerful officials would rather have suppressed. It has informed the American people about the issues so that they may govern themselves. It has righted injustice and championed justice.

Given the hunger for power reflected in the gnawing desire of some politicians to micromanage peoples lives the First Amendment provides an essential check against tyranny. Many politicians would like nothing better than to shut up the public and have their way. Certainly, this is how authoritarian regimes function.

Members of the Rhode Island legislature should understand all that. If they do not, it seems clear that our civics education is even worse than advertised.

Last week, we learned that four senators, all Democrats Sandra Cano, of Pawtucket; Elizabeth Crowley, of Central Falls; Ana Quezada, of Providence; and Harold Metts, of Providence sponsored legislation that on its face was an assault on the First Amendment.

It sought to dictate to the press what must be reported.

As the bill ludicrously put it: The state has a compelling interest to compel the press to promote the objective truth for the sake of the viability of democracy and for the safety, health, and welfare of our communities and in keeping with the spirit of the Due Process Clause of the Fourteenth Amendment and to stop the press from serving as a slander machine.

Needless to say, such an approach would be blatantly unconstitutional. As Steven Brown, executive director of the Rhode Island chapter of the ACLU, noted, These types of efforts to control the press have absolutely no place in a democratic society.

Sponsoring an assault on the peoples most basic freedoms for whatever reason is a black eye to those members and should be of concern to the voters in their districts.

Fortunately, even the sponsors backed off late last week.

According to Senate spokesman Greg Pare, Senator Cano sponsored the Senate legislation as a favor to Rep. Grace Diaz, D-Providence. Ms. Diaz said she withdrew her House bill after a colleague told her, you are setting yourself up for a headache.

Senator Cano then withdrew her bill and vowed in a tweet, My family came to this country for the freedoms of the 1st Amendment & I will do better in defending it!

It is, of course, the responsibility of the news media to strive to be fair and balanced.

But, for obvious reasons, you dont want politicians and bureaucrats dictating whats fair and what isnt in news coverage. And, under our glorious First Amendment, they may not.

Read the original:
Editorial: Preserving the First Amendment - Opinion - The Providence Journal

Two years ago, the U.S. Supreme Court ruled that government workers may not be mandated to pay union dues as a condition of employment. The ruling was a victory for free speech and free association.

Now, in a lawsuit out of Maine, the justices have another opportunity to rein in the power of labor organizations to force workers to accept their representation. The case could have major ramifications for many states, including Nevada.

The legal action brought by Jonathan Reisman, an associate professor of economics in the University of Maine system involves the common practice of governments granting public-sector unions exclusive workplace bargaining rights. Mr. Reisman argues that this runs afoul of the Constitution because it prevents him and other like-minded individuals from speaking for themselves in contract negotiations and forces him to associate with an organization that acts contrary to his beliefs.

If the state cannot compel public employees to financially support union advocacy how can states require these same public employees to accept representation from unions that many of them have chosen not to join? an attorney for Mr. Reisman asked.

Mr. Reisman, according to news accounts, was formerly a union officer, but came to object to many of the policy positions for which his labor group advocated. A federal appeals court rejected his arguments, but the Supreme Court is now considering whether to accept the case.

The matter is ripe for review. As Ilya Shapiro, Trevor Burris and Michael Collins wrote last month for the Cato Institute, arrangements involving exclusive representation restrict a number of individual freedoms.

Exclusive representation simply cant be justified by any state interest, let alone a compelling one, that would validate the serious impingements it imposes on dissenting nonmembers associational rights, they argue. Put plainly there is no labor law exception to the First Amendment, and labor laws that violate constitutional principles must be held to heightened judicial scrutiny.

Indeed, union complaints about free riders nonmembers who dont pay dues yet nevertheless enjoy the wages and protections negotiated during union contract talks are legitimate only because of exclusive representation powers that many states have granted public-sector labor groups. There are no free riders if independent workers are able to represent themselves as they see fit.

Gov. Steve Sisolak last year signed legislation allowing state of Nevada workers to bargain collectively. It will eventually bust the budget, but it also grants exclusive representation rights to labor. Lets hope the Supreme Court recognizes the constitutional difficulties inherent in such a provision.

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EDITORIAL: No labor law exception to the First Amendment - Las Vegas Review-Journal

This episode features a lively (andfair warninglong) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford Universitys Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users speech online, and pretty much no one has both authority and an interest in fostering free-speech values. Conservatives may be discriminated against, but so are Black Lives Matter activists. I serve up one solution to biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing, and the government may have a constitutional problem forcing them to disclose how they make their moderation decisions. Competition law? A long haul, and besides, most users like a moderated Internet experience. Regulation? Only if we take the First Amendment back to the heyday of broadcast regulation. As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the Europe Court of Justices insufferable decision encouraging the export of European defamation law to the U.S.with an extra margin of censorship to keep the platform from any risk of liability. I offer to risk my Facebook account to see if thats already happening.

In the news, the FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F bias test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers Chinas ever-spreading censorship regimenow reaching Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the U.S. name and shame campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banksthats where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview and its facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants. Nick gives drug dealers a lesson in how not to store the codes for 53.6 million in Bitcoin; or is he offering a lesson in what to say to the police if you want that 53.6 million waiting for you when you get out of prison?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a GPS tracking device from your car isnt theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is taking it slow in its investigation of mobile carriers for selling customer location data; now we know wholl be charged (pretty much everyone) and how much it will cost them ($200 million), but we still dont know the theory or whether the whole inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

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The Cyberlaw Podcast: Will the First Amendment Kill Free Speech in America? - Lawfare

WASHINGTON D.C. (WTNH) Connecticut Senator Richard Blumenthal received the First Amendment Defender Award from the Radio Television Digital News Foundation on Thursday evening.

Blumenthal was honored at the 30th annual recognition of First Amendment champions.

The award is presented to an individual or an organization that takes a public stand in support of press freedom.

At a time when press freedoms and access have been under attack, Sen. Richard Blumenthal from Connecticut has stood tall for the rights of journalists to do their jobs and inform the public. He has an impressive record of fighting for the truth and defending the publics need to know.

Sen. Blumenthal is currently serving his second term in the U.S. Senate representing Connecticut. Previously, he served five terms as Connecticuts Attorney General, fighting for individuals against large and powerful special interests.

In a statement about the award, RTDNF explained Blumenthal was chosen for the honor for his relentless work eradicating corruption in state government and making state contracting accountable, fair, honest and transparent.

RTDNF goes on to say, in 2018, Sen. Blumenthal co-sponsored a resolution condemning the Trump Administrations attempts to restrict media access and affirming the importance of a free press. The RTDNF says Blumenthal also helped introduce and reintroduce the Journalist Protection Act, making it a federal crime to intentionally cause bodily injury to a journalist in the course of reporting. In 2019, he cosponsored the Fallen Journalists Memorial Act, a bill that would create a new memorial in Washington D.C. to honor journalists, photographers, and broadcasters that have died in the line of duty.

News 8s General Manager, Rich Graziano, joined Nexstar President, Tim Busch, and RTDNF Chairman and Vice President of Local Content Development of Nexstar Broadcasting, Jerry Walsh, at the First Amendment Awards show and dinner on Thursday night.

According to Graziano, This years honorees are a mix of local and network journalists that provide illuminating reporting, a respected national news program which holds the powerful accountable and a visionary who defends the publics right to know.

Blumenthal joined such honorees as the news show 60 Minutes, David Muir of ABC News, Steve Andrews of WFLA-TV, Lori Montenegro of Telemundo, Barbara Maushard of Hearst Television and Robert (Bob) Horner of NBC News.

Originally posted here:
Sen. Blumenthal to receive the First Amendment Defender Award - WTNH.com