Podcast: Free Speech and Press Cases in the Courts

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. This is a special We the People episode on the state of the First Amendment. We will dive into the constitutional issues surrounding CNN versus Trump, the lawsuit that CNN correspondent Jim Acosta filed against the president and other White House officials after his press pass was revoked. We'll also touch on lawsuits involving the president's Twitter feed as well as possible charges against Julian Assange. Here to tell us about these developments in the First Amendment and to illuminate the arguments on all sides are two of America's leading experts on the First Amendment. And we're so lucky to hear from them. Katie Fallow is a senior attorney at the Knight First Amendment Institute who has litigated First Amendment and media cases. She was previously a partner at Jenner and Block and the deputy director of the Bureau of Consumer Protection at the Federal Trade Commission. Katie thank you so much for joining us.

 

Katie Fallow: [00:01:16] Thank you Jeff. It's great to be here.

 

Rosen: [00:01:18] David French is senior writer for National Review, a senior fellow at the National Review Institute, and the previous president of the Foundation for Individual Rights in Education. A great defender of the First Amendment and a returning champion on the We the People podcast. David it's wonderful to have you back.

 

David French: [00:01:36] Thanks for having me. I really appreciate it.

 

Rosen: [00:01:38] All right let's jump right in. Katie let's begin with the facts. There was an important hearing in the CNN case recently and a ruling by the judge and it focused on a case called Sherrill versus Knight from the D.C. Circuit in 1977 which held that the protection afforded newsgathering under the First Amendment guarantees of freedom of the press requires that access to White House press facilities not be denied arbitrarily or for less than compelling reasons. So tell us about the Sherrill case, what the judge held in the CNN case - it was not a firm First Amendment ruling but a due process ruling - explain what the judge's reasoning was.

 

Fallow: [00:02:16] Yes. So in the Sherrill case- actually the Sherrill case spanned looks like almost over a decade where Sherrill the reporter, who was a reporter and a White House correspondent for The Nation magazine, applied for a press pass, security clearance from the Secret Service, and he was denied the pass and the Secret Service refused to tell them the reason why he was denied the pass. The pass obviously would provide him access to go to the press briefings at the White House. So he kept on trying to find an answer. Eventually the ACLU got involved and they filed first of all a freedom of information suit, and at one point at the end of that - it sort of started apparently in the Johnson administration but then went into the Nixon administration - and I guess at some point John Dean sent a letter to the reporters saying, well you were- you have an assault conviction in Florida at some point and that's why you were denied the pass. The ACLU got involved. They filed a lawsuit against the Secret Service and the D.C. Circuit in its decision, as you said, recognized that there was a first amendment right of access to the White House, what they called the White House press facilities, and there was no allegation in the Sherrill-Knight case that the reporter was denied the security pass or the press pass based on the contents of his speech or viewpoint. And the court sort of in passing suggested that that would be a real problem. But still the court- the D.C. Circuit said that there is no- the White House does not have to open its facilities or its property at all to the press, but once it does and it creates these press facilities, the space for the press to be, it as you said can not deny a press pass to an otherwise quote bona fide journalist for arbitrary reasons or for less than compelling reasons. And the D.C. Circuit said on the First Amendment argument that compelling- you have to have a compelling argument because- I mean, excuse me, a compelling government interest if you are to do something that would infringe on the reporter's right of speech or write to engage in newsgathering. So we have that decision out there and in there as you said the district- the D.C. Circuit did recognize a First Amendment liberty interest and then went on to say that because the reporter has this interest in getting the press, he is also entitled to due process which, meaning, notice of the rules that govern access to a press pass and an opportunity to respond if he is denied or there is a decision that could be denied that interest. So flash forward however many years, you know several decades to the current situation with CNN and after the contentious press conference on November 7th following the midterm election where there was this back and forth between CNN correspondent Jim Acosta and the president and a White House intern attempted to take back the microphone from Mr. Acosta and he refused to relinquish it. So then the White House offered a series of different and sometimes conflicting justifications for why it had revoked and directed the Secret Service to revoke Mr. Acosta's press pass which has basically never happened as far as anyone has reported. So CNN filed the lawsuit and in the hearing last Friday, a District Court Judge Kelly who was a Trump appointee granted CNN's request for a TRO and ordered that the White House return the, what they call the hard pass, kind of a not permanent but ongoing press pass of access to the White House and in his- this was a decision given from the bench and Judge Kelly said, it was interesting, basically said he suggested that he doesn't agree with the gist of the D.C. Circuit's decision in Sherrill v. Knight or may not like it but that he is bound by it, that it is longstanding precedent of the D.C. circuit, as a district court judge he is bound by it and he based his grant of the request for a temporary injunction on due process grounds. He, the judge said I'm not going to rule on the scope of CNN or Jim Acosta's First Amendment claim but I'm just going to hold that here, he was apparently given no process at all, and so you cannot revoke. That would irreparably cause him constitutional injury and you can't revoke the press pass based on those grounds.

 

Rosen: [00:07:34] Thank you so much for that great introduction. And We the People listeners if you check out the transcript of the hearing that Katie referred to, by Judge Kelly, which took place on November 16th, you'll have a sense of a district judge in real time balancing the equities in a very moving way. And David, is it significant that Judge Kelly is a trump appointee who ruled against the evidence? Does that suggest that the law is clear? And then as Katie suggests it was a due process ruling holding Mr. Acosta had the right to notice and to rebut the Government's reasons and a written decision. What happens next if he's given those opportunities? Can his press pass be revoked or does that trigger the First Amendment arguments and how do they play out?

 

French: [00:08:25] I think that given the Sherrill v. Knight decision and the clarity of that decision, I think it should be- I think that a judge whether they are appointed by Clinton, Bush, Obama, or Trump would have reached the same result. So in the sense- legally I don't think it's significant that a Trump appointee Judge rendered this decision. But politically I do think it's significant. I think it's something that should make many of the very reflexive defenders of the administration stand up and say, oh wait a minute. Maybe this action did violate controlling legal authority. So I do think there is some real significance there and that it came from- to the public that it came from a Trump appointee judge. But you know any district judge should be bound by that D.C. Circuit precedent. Of course I think that- one of the things that I think is really important for folks to understand, and this is something that is, I think, going forward, going to be interesting to see how it works out, is that essentially what we have here is an administration that has given an ample amount of evidence that it particularly relishes a fight with CNN, that- and the president himself particularly relishes a fight with CNN, and he particularly relishes a fight with CNN on the basis of what he perceives to be CNN's viewpoint. And that's going to be important as the case goes forward because one of the cornerstones of First Amendment law is a generalized, you know, we can get into the weeds and talk about the exceptions to this, but a generalized prohibition against viewpoint discrimination. And given the abundance of evidence of Trump himself and how much he dislikes CNN because of CNN's viewpoint, it's going to be tough if this case moves on to any kind of viewpoint discrimination analysis, I think, for the administration to prevail. The other thing that I think is interesting about this is, if you have- a cornerstone of the First Amendment is prohibitions against viewpoint discrimination. Well a cornerstone, shorthand definition of due process under the 5th Amendment is notice and an opportunity to be heard. In other words, notice of the rules that apply against you and an opportunity to have your case or your side heard, as- in any sort of, whether formal or informal, adjudication of those rules. And that's something that I think is going to be really difficult for the administration to prevail on as this case moves forward because, what were the rules that Jim Acosta was supposed to have notice of? We know that the administration appears to be in the process of formulating some guidelines at present but formulating guidelines in the present and applying them retroactively has some additional due process concerns as a general rule. You can't- you can't punish a person under rules that did not exist when they engaged in the alleged misconduct. So you're running up against a couple of elements of the First and Fifth Amendment that I think are going to be- they're going to be difficult for the administration to overcome.

 

Rosen: [00:11:50] Thank you very much for that. Katie, as you think about the substantive First Amendment claim, in other cases we've seen courts refuse to look to the president's motive. The Supreme Court in the travel ban case refused to find an ilicit motive of religious discrimination and still expect- accepted the law as facially valid. Here, the government will argue that it had safety concerns, that Jim Acosta menaced an intern. How are courts more likely in First Amendment cases to look for actual motive? And in that sense, do you agree with David that they might well conclude that the real motive was to discriminate against CNN or not? Walk us through what the substantive wing of the First Amendment cases would be and put on the table any other relevant Supreme Court precedents including perhaps two cited by the complainants, New York Times and Sullivan and The Hustler magazine case which talked about the importance of robust political debate.

 

Fallow: [00:12:48] As David said, a cornerstone of First Amendment case law is that the public officials and government officials cannot seek to suppress speech or censor speech based on viewpoint, and it's a fundamental First Amendment principle, and in the context of public forum law, which is where the Supreme Court and other courts have frequently applied this rule against viewpoint discrimination, as they call it, the Supreme Court has made clear that if a government purports to be trying to censor speech or exclude someone from a public forum and they say it's based on a rule of conduct or on a rule that has no relationship to the speaker's viewpoint or the content of the speaker's speech, that the courts will look behind that the purported justifications to ensure that it's not a pretext for impermissible viewpoint discrimination. So I think that is the basis, one ground of which this would be different from the Muslim ban case where the court was looking at just the letter of the executive order in that case and determining whether that was fully justified under the president's authority. But here if there is a question whether or not the president or other people at the White House were motivated by Jim Acosta's viewpoint or the content of his questions and you know the video of the press conference is obviously available for everybody to see and I think there's both that and also the sort of longstanding history as David said of a feud between President Trump and CNN and President Trump's repeated attacks on CNN and particularly based on CNN's opposing viewpoint. So I think that if Judge Kelly or another court reviewing this and Acosta brings a claim saying I was excluded because of my viewpoint and the content of my speech that it would be necessary under the relevant case law to have factual discovery to determine what was the motivating what motivated there the revocation of the hard pass and New York Timesv. Sullivan and hustler. I think those cases are extremely important cases and First Amendment law and both I think supporting the view that public officials and public figures have to put up with a fair amount of challenging viewpoints from other speakers so famously in The Hustler Supreme Court case which didn't involve a public official but a public figure of Jerry Falwell. The court held that even very coarse crude speech that many people would find extremely offensive which was a parody of that I think. I think it's Jerry Falwell speaking right? Yes for sexual experience, that even in those instances the First Amendment protects all manner of speech and that people who are public figures or public officials that are out there in the world essentially kind of have to have a tough skin and put up with a fair amount of speech even that's offensive because of the important principle of the First Amendment protecting, sort of creating a bubble around protected speech to ensure that it is not unduly censored.

 

Rosen: [00:16:48] Katie, you and Knight have argued that the Trump Twitter lawsuit raises many of the same issues as the CNN case. In that case, Knight claims that the plaintiffs were blocked from the president's account because they posted tweets critical of the administration. And you also argued the ban was a violation of their First Amendment right to free speech and free assembly. And a judge has preliminarily agreed with the Knight Foundation. Judge Naomi Rice, a district judge, in a recent decision held that: we hold that the portions of Donald Trump's account, the interactive space where Twitter users may directly engage with the content of the president's tweets, are properly analyzed under the public forum doctrine set forth by the Supreme Court, that such space is a designated public forum and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. David tell us about this very interesting ruling, more about the public forum doctrine. Was it unusual that Twitter was held to be a public forum and why was this viewpoint discrimination?

 

French: [00:17:58] This was a farce and this is a fascinating case. It's still ongoing obviously and it- it really goes to this. This is the- this is a situation where we may end up, your two guests may end up disagreeing a bit on this but this turns on whether or not the forum was owned or controlled. Donald Trump's Twitter account being the forum in the spaces underneath, in the replies to a tweet, is that owned or controlled by the government? So if you have a forum for speech that is owned or controlled by the government then First Amendment protections are going to lock in. And again going back to some of the things we've talked about before, one of the thing- one of the core fundamental First Amendment protections is this freedom from viewpoint discrimination. So if the Trump Twitter account or this particular spaces within the Trump Twitter account are owned or controlled a forum owned or controlled by the government. This is actually a pretty easy case that blocking critics that- inhibiting critics' speech, prohibiting critics from sort of having the same kind of access to Trump's speech, all of those things are- it's going to be an easy case, it's gonna be pretty open and shut if this is owned or controlled by the government. So therefore I think that that's the- that's the central question and where I have some disagreement with the judge's decision is Twitter so thoroughly controls our accounts. Twitter is so thoroughly in charge of our accounts that I question whether we could say it's owned or controlled by the government. I pulled up Twitter's terms of service and it's really pretty stunning. So not only can they suspend or terminate you, cease providing you with all or part of the services at any time, they can do so for any reason or no reason at all. You don't have to violate the terms of service. Twitter has the ability to shut you down in whole or in part for any reason that Twitter wants to shut you down. So this is a- in my view this is a Twitter controlled forum not a government controlled forum. In fact even Twitter control is so complete that your content on Twitter isn't even your content anymore. For example when you post on Twitter you grant Twitter a worldwide non-exclusive royalty free license to use copy reproduce all of this content in any way that they see fit. So it's a- I think it's a case that's very interesting to see if forum doctrine is going to extend to it, into a space so thoroughly controlled by a private entity and that I think that will be one of the core questions as this case goes forward.

 

Rosen: [00:20:53] Fascinating. Katie you and Knight argue that Twitter was a public forum. Tell us what the tests are for how to determine a public forum and why you think Twitter is one?

 

Fallow: [00:21:05] Yeah, just to step back a little bit. First I want to also note that the judge in the case is Naomi Rice Buchwald, just in case anyone wants to look up the judge and her decision. But you know so- in this case we represent seven individuals, people from all over the country who you know including a sociology professor, a- several writers, a doctor, and a veteran and police officers, so people from all walks of life. And the thing that they had in common was that they replied directly to the president's tweets which he made using his @ real Donald Trump Twitter account which everybody is aware of. They replied directly to him. And the president then blocked them from his Twitter account. And what it means if you block someone is that that person, if they're signed into their Twitter account, they can't read your tweets. And they also can't reply directly to you. And the president using his @real Donald Trump account, he tweets, as we all know, all the time and in response to every single one of his tweets there are tens of thousands of replies and comments and those replies all appear in these comment threads that appear underneath the president's tweets. So what we argued was that the president was using his @real Donald Trump Twitter account essentially as a virtual town hall. So a vast virtual town hall where he as the public official was essentially standing at the front of this vast forum and speaking and then all of the members of the audience who are the individual Twitter users can speak= engage in their own speech and reply to him and reply to each other and discuss the president and his policies. And that discussion appears in these comment threads and we argue that by blocking- when he personally blocked them, he was essentially evicting them from this town hall. And just as a city council that is holding an open town meeting can't eject someone from that town meeting because they don't like what the person has to say, the president shouldn't be able to block people from replying to him because he doesn't like when they criticize him. And then David- so we made that argument and this is the public forum doctrine which we've sort of talked about, and in a series of cases over the last 30 or 40 years the Supreme Court has recognized this, what they call the public forum doctrine, the traditional public forum doctrine are limited to essentially public parks and sidewalks which throughout our history we have a long tradition of allowing people to essentially get up on a soapbox and speak their mind. And it is this fundamental principle as we've discussed that public officials could not throw someone out of a park or make them get off that soapbox because they don't like what they have to say. They can develop these content neutral viewpoint, neutral time place manner, or rules like saying, no you can't in certain circumstances, you couldn't use a megaphone or you have to do it at certain times of the day, but you have to ensure that the government isn't using those kinds of rules essentially just to kick people out because they don't like their viewpoint. So that's traditional public forums. But the Supreme Court has also recognized what it calls a designated public forum. So it's a non-traditional space that as David said is owned or controlled by the government and where the government has opened up that space for people to engage in speech. And so if the government does that and that would be for instance you know if a city council decides to have an open public meeting in its offices, it may not traditionally open up those offices to the members of the- of the general public to speak. But once it says we're going to have these meetings there on Tuesdays and you're able to speak if you're a member of the community or if you just want to address the issues we're talking about, well that would be considered a designated public forum. And what the Supreme Court has made clear is that once again, you cannot restrict people's access to that forum based on either the content of their speech or their viewpoint. So Judge Buchwald agreed with us. What she found was that although the president in his own tweets are not a public forum, that's his speech, but this quote space which she called the interactive spaces which are the places where people can reply directly to him she said those are a public forum. And when he blocked people from his @real Donald Trump account he was operating the necessary control. So yes Twitter in general controls the whole platform but individual account holders, they make decisions about who they are going to block from their accounts. And because when he did block people from the account, that was the action that had the effect of excluding them from this these comment threads and that is government action, that is subject to the first amendment. And you know, I know David brought up this question about if Twitter does retain a significant amount of control over the platform in its entirety, can that really be a public forum? Our view is that first of all the Supreme Court has applied the first amendment and the requirements of the public forum doctrine in context where the government was for instance leasing a theater. So there was a private property owner who retained ultimate control over a Municipal Theater in this case involving municipal theaters, denial of the ability to show the play Hair. But the Supreme Court sort of held that the fact that it looked at what the government entity was doing there and that the government entity was the one that was making the decision about whether the musical could be performed. So I think it's also important to keep in mind that if you conclude that a Twitter account cannot be a public forum even if it's run by a government official or a government entity then all social media accounts that owned by the government including the @POTUS account, the White House account that allowed people to speak, well they could not subject to the public forum doctrine. Theoretically they could just go and exclude anyone they want all based on viewpoints and we believe that would have completely unacceptable consequences from a First Amendment standpoint.

 

Rosen: [00:28:20] Thank you for all that. David in Judge Buchwald's opinion she analyzed the complicated cases about limited public forum including the Perry education case where the plaintiffs want access to a public school's internal mail system to distribute literature. And she stressed here that the plaintiffs weren't seeking access to the whole account, in other words the ability to send tweets but just to get messages, and she said that because the account was controlled by a government official, namely President Trump, citing cases including fascinatingly, and I'm on pages forty two onward for listeners who want to geek out and read the really fascinating opinion, she says, she cited the Zivotofsky opinion saying the president has a unique role in communicating with foreign governments. That was the determination of where the capital of Jerusalem could be. She concluded in practice this was a limited public forum so it's obviously a complicated balancing of equities. But what's the argument on the other side and when and how do you- how do you think the Supreme Court might come down if they were to take up this question?

 

French: [00:29:29] I would actually I would be surprised if the Supreme Court held this to be a designated or limited public forum. I think that there is an avenue here that individuals have that has nothing to do with the government. Individuals could go to Twitter and say to Twitter, we believe you as a company should make it to where public officials or public figures how ever you know you define it, but certainly public officials and official government accounts, do not have the ability to block and do not have the ability to mute for example, and Twitter could do that and do it instantaneously and do it without any court involvement at all. And that illustrates I think the extent that- the level of control that Twitter has here. So for example if the government leases out a private community center or private theater for a government meeting, the lease is going to grant the government a degree of control over those proceedings that a tweet- that does not exist when a government official logs on to Twitter or a government account logs on to Twitter. And so I think that that's going to be a a key question going forward and that's going to be the thing that I think may ultimately- and because again as I said if this thing, if twitter- if there is a owned or controlled- if this is deemed to be owned or controlled by the government, this case is relatively easy, there is a clear act here of viewpoint discrimination. There's clear inhibition of the ability of the of the plaintiffs to interact. Now it's not a huge inhibition but there is- there is a punitive action that's taken place. But the owned or controlled analysis is going to be in my view the analysis that's going to ultimately decide this case. And in- given Twitter's absolute control, given the extent to which Twitter can uniquely modify the control that it gives to government officials in what it deems, what Twitter solely deems in its own discretion to be the public's interest, I don't think the Supreme Court even though this court is relatively speech protective compared to prior courts I don't think it'll ultimately rule for the plaintiffs. But it's not cut and dry. It's going to be an interesting hard fought piece of litigation.

 

Rosen: [00:32:13] Katie your response to those thoughtful observations about whether or not Twitter is owned or controlled by Twitter or by the president in the case of the Donald Trump account. And then I want to broaden out the question. Just this past week Mark Zuckerberg announced plans to create a Supreme Court for Facebook. He said that you can imagine some sort of structure almost like a Supreme Court made up of independent folks who don't work for Facebook who ultimately make the final judgment call on what should be acceptable speech in a community that reflects the social norms and values of people around the world. All of us who think about free speech are struggling with how to think about the platforms Twitter, Facebook and Google. In a world where they control more about who can speak and who can be heard than the president himself and the Supreme Court justices, after your reflections on public forum doctrine, what do you think of the idea of a Supreme Court for Facebook?

 

Fallow: [00:33:09] I mean I think you'll not be surprised to hear that I disagree with David's ultimate prediction for how the Supreme Court rules on this but I think that- and I think it's for several reasons: first of all nothing in the case against the president for blocking people on Twitter turns on anything that Twitter did. It's not a case against Twitter; it's against the president and his aides and it has- it focuses specifically on the access that the president controls to be able to reply to his Twitter account. And the president made those decisions just as anyone else who's an account holder could make. So I think it would be entirely consistent with the public forum doctrine as the court has made clear that when you're determining whether it is a public forum you look at the- and what constitutes the public forum. You look at the access sought by the speaker and here the access is the ability to reply to him. I also think you hold that the fact that Twitter retains some control over the platform generally as I mentioned, there are so many things where the government for instance, if the government maintains an interactive website where it allows people to post comments on a Web site, which courts have held that that would be a designated public forum, the Web sites are hosted by private companies. I mean you know obviously the Internet itself is owned by, the people who carry the signals are owned by private companies. So if you hold that the fact that a private property owner provides the communications technologies that people can use in this day and age to engage in speech and engage in these virtual public forums there's no stopping point to that. Turning to Facebook having a Supreme Court of Facebook you know I think that Facebook itself, and just as in our case of Twitter, they are not considered state actors. So they are not subject to the first amendment and to some extent they can organize their platforms as they see fit. But I think what we're seeing is that Facebook is struggling with how to determine what speech is allowed on its platform and they're actually addressing many of the same problems that the courts have had to grapple with over the years. And it's easy to say well we don't want x kind of speech or we all think that y kind of speech is bad, but when you actually try to define it and adjudicate it it is is pretty hard to do.

 

Rosen: [00:36:06] David your thoughts on whether Facebook should create a Supreme Court and given the fact that it is creating one, what criteria should the Supreme Court have? What should the appointment procedures be? How do we guarantee judicial independence independence? And who should serve on it aside from you and Katie who I nominate immediately.

 

French: [00:36:26] Well you know I think I actually am somewhat heartened by it in the sense, I think we've reached a point where nobody trusts Facebook anymore. So if- you know it- folks on the right are convinced that Facebook to the extent it has any discretion at all, disfavors conservative viewpoints, is more apt to view conservative viewpoints as dehumanizing or hate speech and has a strong progressive bias against conservatives on the platform. A whole lot of progressives look at Facebook after the 2016 election and what it knew about Russian interference and Russian accounts or Russian sponsored accounts, the way in which Facebook seemingly concealed a lot of that information from the public and are sort of thoroughly over Mark Zuckerberg as well. So Facebook has a PR problem. It doesn't have a- it doesn't have a a real competitor right now but it's still got a huge PR problem. And so I think that moving towards some- moving towards a structure where you can say, hey we have, we know we have a problem, we know you don't trust us and we're going to have this independent panel that deals with these thorny questions I think is an interesting approach. But the core problem is if they continue to have vague standards for determining- vague and subjective standards for determining what kind of speech is allowable on the platform, you could put together the most dream team panel you can imagine and they're still going to come up with standards that will satisfy- be dissatisfying to an enormous number of people. And because- the problem comes that if you're going to try to ban so-called hate speech, you're going to run into a definition problem and as you run into that definition problem you're going to you're going to end up in constant battles on the margins over that definition of hate speech. What I- what I have written in the past, I wrote this when Alex Jones was banned from Facebook and YouTube, is that I think these social media companies that are seeking to create something that approximates a marketplace of ideas would be well served by not trying to reinvent the wheel on speech standards but instead look to our centuries of development and the first amendment and use that as their guideline, use that as their sort of starting point. Now I'm not saying that they should replicate all aspects of First Amendment jurisprudence but using that as the starting framework I think is going to get them a lot further than sort of this endless battle that exists over very nebulous and difficult to define concepts like hate speech and applying that, for example, applying a more First Amendment centered framework, and one that is- relies on our centuries of development in common law hardly leaves people without any protection at all. So for example I think it would be clearly within Facebook's rights and maybe even a Facebook obligation to kick from its platform people who you know engage in defamation, libel, slander. In that circumstance you know Alex Jones would be a candidate for removal on the basis of his Sandy Hook conspiracy theories alone. So there are many ways in which you can create a platform that- where the rules and regulations regarding conduct are more explicitly viewpoint neutral because the instant you begin to open up the viewpoint analysis is the instant you open up Pandora's box, as every one of these platforms, every single one of them has understood and struggles with on a daily basis.

 

Rosen: [00:40:23] Very interesting. Katie, David says what's important is not just the appointment procedures but the substantive law, and he calls for a kind of First Amendment free speech imperialism, if I may, that basically should adopt a version of the Supreme Court's interpretation of the First Amendment which says that speech can only be banned if it's intended to and likely to cause imminent violence, unlike the current Facebook, Twitter and Google standards which allow the banning of hate speech and other speech that demeans people on the basis of group identity. Do you agree with David on the substantive standards or not?

 

Fallow: [00:41:02] Well I tend to agree with David very much on this idea that you know that these are very hard lines to draw, that whenever you try to start applying standards to carve out certain kinds of speech and you brought into these problems of how to define that and you inevitably run into situations of speech. On the other side for instance there was a law that was struck down by the Supreme Court in the past decade or so that would have prohibited the depiction of quote animal crush videos and a lot of people were you know agreed on that- that these kinds of images served absolutely no social value. There were a number of animal rights groups that actually did not support the law because they wanted to be able to engage in speech protesting this conduct. And so- and recognizing that if you apply a vague standard you could also apply it against people who were fighting against the social harm or anytime that you've tried, the state would say there have been centuries in the development of our Supreme Court, our First Amendment jurisprudence that any laws that sort of challenge speech that again you know has one point of view, can often be used against people on the other side. So obviously that's the slippery slope problem. So I think you know again as I said I think that Facebook is certainly not bound by the First Amendment in terms of what speech it can or cannot have. But I do agree that when they have tried to for instance police fake news or to ban certain kinds of speech it does raise a lot of problem- questions and problems that I think are hard to work out.

 

Rosen: [00:43:18] All right, I have one final topic on this First Amendment tour that is WikiLeaks. In what seems to have been a cut and paste error, there was a filing in an unrelated court case that revealed last week that the Justice Department may have charged WikiLeaks founder Julian Assange. And it's been trying to come up with a way to charge Assange since 2010. But the Obama administration was concerned about charging Assange under the Espionage Act of 1917 because, as The Washington Post put it in 2013, there was a New York Times problem. In other words if the government indicted Assange it would be similarly able to indict the New York Times and other news organizations who publish classified information. Until now there's been a barrier on indictments of news organizations under the Espionage Act. David explain to us the significance of the apparent decision to indict Assange under the Espionage Act or other grounds for charging him, and what are the implications for press freedom moving forward?

 

French: [00:44:24] Right, I think there's a clear implication for press freedom if he's being indicted for publishing classified information and that would be the sum total of the indictment. There is a New York Times problem, there is a- it's not just a New York Times problem. As a practical matter there's a New York Times problem. As a legal matter, I mean there's the New York Times versus the United States case from 1971 involving publication of the Pentagon Papers that were highly- that were highly classified documents detailing the history of the US war in Vietnam in the run up to the war in Vietnam. And so the government sought to prohibit their publication and the Supreme Court refused and refused to grant prior restraint against their publication. And so essentially what this did was create a obligation on the part of the government to keep its classified information classified if it wanted. If it didn't want it to be in the public domain it should take steps to prevent it being in public domain but once it can - and it can take steps to prevent it from being in the public domain - but once a news organization gets a hold of it as a general rule it's going to be able to publish it. I think that's a sound framework, but when it comes to wiki leaks there may be a lot more going on here. It would actually somewhat surprise me if the indictment was over the publication of classified information. I mean these Wikileaks classified documents have been in the domain for a very long time, going back to some of the disclosures in the Obama years, so that this stuff has been out there. News organizations have published it. I mean it's just been all over the place so that would surprise me. It would not surprise me if there was evidence that WikiLeaks had participated in hacking attempts or if WikiLeaks had conspired in some ways with foreign intelligence agencies to engage in clandestine activities that are unlawful regardless, you know, unlawful and don't really touch on the first amendment at all. There's just, there are many ways in which a hostile foreign entity, particularly a hostile foreign entity that is known to be an asset of Russian intelligence can violate U.S. law., and so it would surprise me if it boiled down to- if the indictment boiled down to indicting WikiLeaks for publishing classified information. If it did it would have, that indictment I think would have a hard time sticking.

 

Rosen: [00:47:03] Thanks for that. Katie, your thoughts about why an indictment for publishing classified information would have a hard time sticking and why it would represent a sea change for the first amendment and why previous presidents have been reluctant to bring such indictments, as well as what do you think the other charges might be?

 

Fallow: [00:47:25] I mean I agree with David that if there has been, or WikiLeaks has been charged- Assange has been charged under the Espionage Act, that creates a huge potential problem a huge as David said New York Times problem, or any newspaper problem, because if he is prosecuted under a law for actually leaking the information, so not aimed at the actual conduct that's supposed to be unlawful but merely for publishing information that he knows was obtained unlawfully, there is a whole line of cases including the Pentagon Papers case and including another case called Bart Nicky in the early 2000s that holds that publication- that the government may not penalize mere publication of information that's of public interest even if that information was originally obtained unlawfully. And that is extremely important because as we've been discussing, otherwise any news organization that you know obtains leaked information or is aware of information that has been leaked or you know somehow obtained, which is a lot of reporting and a lot of really important reporting, would fear publishing this information because they could be potentially subject to serious criminal penalties, and for that reason, it is my understanding from reading- which is why the Obama administration, which in fact stepped up its prosecution of leakers themselves, held off and did not pursue an espionage act claim against Assange for this very concern, because it is no- if on the face of the Espionage Act itself it says it is unlawful to publish or release information that is classified, there is no carve-out for a news organization. And if there were, it is very hard to craft something like that because it brings into question what's a quote legitimate news organization? And I think it would be a very bad rule if the court were to say well that kind of protection is only granted to formal news organizations because that would not provide a lot of you know bloggers and other people who are just citizen journalists who want to publish things the kind of protection that I think we want to have because we want this information to be out there and I think you also have to look at this in the context of you know what a lot of people have criticized as a great growth of overclassification somewhat.

 

Rosen: [00:50:19] Well it is time for closing arguments in this hugely illuminating and very rich discussion about this CNN case, the Twitter case, and the Facebook Supreme Court, and the WikiLeaks case. As we're talking, the Guardian has just reported that CNN could be back in court as early as next week over news reports that the Trump administration has warned that his credentials are set to be suspended again when the 14 day order expires. So David first closing thoughts to you. How do you think that this case will ultimately be resolved? How far up will it go? What will the final resolution be? On what grounds? The first amendment or due process? And why should our listeners care about the CNN case and the future of the first amendment?

 

French: [00:51:10] Well I think ultimately the case will be resolved in CNN's favor. You know I think that when you have a situation where there is such overwhelming evidence of viewpoint discrimination, where you have an establishment of prohibiting conduct or a standard reappraise conduct after the individual is engaged in the conduct rather than establishing clear viewpoint neutral guidelines before, there are just too many ways here in which the Trump administration appears to be acting in an arbitrary, capricious- and to the extent it's not arbitrary, it's quite specifically targeted on the basis of viewpoint, I just find it difficult to believe that there are five justices, if this makes it that the Supreme Court, who would go for the proposition that the- under these facts, under these circumstances that the Trump administration has the ability to block Jim Acosta. Now could the administration promulgate some reasonable viewpoint neutral guidelines for behavior and apply them going forward? Yes absolutely it could. And if it a reporter violated reasonable viewpoint neutral guidelines for conducting decorum, going forward I think in that circumstance a reporter would lose. But that's not where we are right now. And I think a lot of news organizations, and this is something that's surprising to some conservatives, including Fox News, have reached that same conclusion that says look this is this is a real threat. And why should people care. Well you know because if you're a Trump fan you have to realize that Trump's not always going to be president. You have to understand and realize that there will be somebody on the other side who may not like some of your favorite reporters. That's one of the things about the First Amendment is, in one of the- one of the realities of free speech is it almost always comes back to bite you when you try to uphold a principle that says free speech for me and not for- free speech for my favored speakers and not for the speakers I dislike. It's almost like there's this constitutional law of karma. It always comes back around. And that's one thing you've gotta understand.

 

Rosen: [00:53:31] Love it. The Constitution Center will enforce the constitutional law of karma to the best of our ability. Katie last word to you. How will the CNN case eventually be resolved? How high up will it get and why should our listeners care about the case of CNN versus Trump?

 

Fallow: [00:53:54] I agree with David. I think that a court- the Supreme Court and the courts in between, the district or the Supreme Court, are unlikely to uphold sort of this post hoc rationalization or attempt to cover the real reasons why Acosta's hard past was provoked. And I think you need to also see this within the larger pattern of President Trump and his administration seeking to exclude critical voices from public forums, whether it's the press- White House press conferences where I think you need to take into account both the reporter's own free speech rights to engage in speech and to engage in newsgathering as a member of the press, but also to think of the press. And remember that they serve an important function in our democracy of being a representative for the public, or news gathering for the purpose of providing information to the public. And it would be bad not just for CNN but for the public if people- reporters aren't allowed to ask challenging questions at White House press conferences without fear of retaliation. And similarly in our case against the president for blocking people on Twitter we think that there are sort of two harms: there's the harm to the individuals who are blocked by the president. And it wasn't just the seven individuals but many people from around the country who I will note have subsequently been unblocked after the court's decision. But it's the harm to those people to make their replies, but it's also a harm to the listeners who want to hear political discourse and hear from people from all over the political spectrum. And just as if you were in a town hall and you tell someone to sit down, you don't like what they're having to say, what they have to say, you're hurting their first amendment rights but you're also hurting the rights of the other community members to hear from people who are critical.

 

Rosen: [00:56:00] Thank you so much, Katie Fallow and David French for an illuminating deep and really educational discussion about a series of very current First Amendment issues. You have reminded us that although thoughtful people of different perspectives can disagree about the application of particular First Amendment standards, the standards themselves unite us and are a shining beacon for freedom that is truly inspiring. Katie, David thank you so much for joining us.

 

French: [00:56:31] Thank you.

 

Fallow: [00:56:32] Thank you.

 

Rosen: [00:56:39] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate review and subscribe to we the people on Apple podcasts or wherever you listen, recommend the show to your friends and colleagues and check out our companion podcast Live at America's Town Hall. We have the most incredible constitutional conversations here at the Constitution Center every week. Just last week was a wonderful discussion of Hamilton: The Musical and the law with an amazing series of guests and you can hear all of those programs on the Live at America's Town Hall podcast. Check it out. I bet and hope you will learn from it. Always remember when you wake and when you sleep as you prepare for Thanksgiving, when all of us have so much to be grateful for and especially the gratitude for, the ability to learn and to enlighten ourselves by hearing thoughtful intelligent arguments on all sides of our contested national debates so that we can cultivate our faculties of reason - express your gratitude please by joining the National Constitution Center and becoming part of the family of learners around the country that have the privilege of uniting in reason. Isaiah the prophet said, come let us reason together and the great Louis Brandeis was so inspired by those words. By listening to this podcast you are part of the community of reasoned citizens and I want you to express your appreciation for that by making the National Constitution Center's work possible. Check us out at ConstitutionCenter.com/membership to learn more. Happy Thanksgiving everyone. And on behalf of the National Constitution Center, I'm Jeffrey Rosen

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