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Archive for the ‘First Amendment’ Category

Defamation suit dismissed

In First Amendment on 31 Aug 2017 at 2:56 pm

There was an important victory on the freedom of speech front last week, and it involved a certain former Wasilla, Alaska, mayor.

A federal judge in New York on Tuesday dismissed a suit brought by former national political candidate Sarah Palin that claimed the New York Times defamed her in an editorial. She held in her suit that the Times acted with actual malice when it suggested in an editorial (it quickly changed) that Palin’s political rhetoric led to the shooting of a congressman in a Washington D.C. park.

The judge disagreed:

“What we have here is an editorial, written and rewritten rapidly in order to voice an opinion on an immediate event of importance, in which are included a few factual inaccuracies somewhat pertaining to Mrs. Palin that are very rapidly corrected,” Judge Jed S. Rakoff of Federal District Court in Manhattan said, according to a report in the Times. “Negligence this may be; but defamation of a public figure it plainly is not.” … Read the rest of this entry »


Unpublic records

In First Amendment on 4 May 2017 at 12:56 pm

Many thanks to Christianna Silva at the University of Arizona for this report on the state of public records in her state. Sadly, it won’t surprise anyone engaged in the daily struggle to pry public records from public agencies.

Here’s her lede:

PHOENIX – More than a month ago, 19 Arizona agencies were given simple public record requests seeking data on the numbers of those requests those agencies received in 2015 and 2016. Less than half responded.

Of the 19 agencies requested, nine responded, three on the same day it was sent.

Only one agency — Arizona Attorney General’s Office — provided everything requested. Officials there explained they did so because their response was required by law.

So to recap, only one of 19 public agencies in Arizona followed the law when given a very simple public records request. Most didn’t even acknowledge the request, even though it came from someone at the state’s flagship university and not some trouble-making news organization.

If ever there was cause for alarm in the populace, here it is. Again, from Christianna’s terrific piece. … Read the rest of this entry »

Don’t let the sun go down on me

In First Amendment on 16 Mar 2017 at 3:28 pm

Be a beacon of sunlight.

Today marks the end of Sunshine Week. I had planned on using last week’s Kicker to suggest you spend this week giving the powers that be holy hell in the name of sunshine, but events conspired. I didn’t get around to an update last week. So here we are.

The good news is that this good fight never ends. Consider next week Sunshine Week as well, and the week after that. And the week after that.

There is some law of physics that holds: People will seek to control information in direct proportion to their relative need for power. The nice people who run your local nonprofit are likely to ask that you keep their fundraising totals under wraps, but here’s guessing they are a lot less difficult than your average dictator. The corollary to the law is that faceless individuals are most likely to deny you information. You know this to be true if you have ever emailed some state bureaucrat somewhere to ask for an innocuous document only to get something in which every line is needlessly redacted. Small people simply love to have a secret.

When people say no to your curiosity, they are also saying no to the thousands of people who count on you every day. Keep that in mind and your battle won’t feel as daunting nor as lonely. You will be made to feel like a prying jerk if, say, you ask how much everyone is paid at city hall. Just remember that money belongs to your readers and you will sleep well at night.

Here are some resources intended for Sunshine Week. Please take a look and find a dark place to shine some light.


Access denied

In First Amendment on 17 Nov 2016 at 5:07 pm


Renée Jean, energy editor for the Williston Herald, has written a series of extraordinary stories about the ongoing Dakota Access Pipeline dispute in North Dakota. One of the most interesting, for my money, is her first-person telling of the obstacles to reporting the story. It appeared earlier this week online and in the print edition.

The pipeline story is big news everywhere, of course. A company called Energy Transfer Partners proposes a 1,172-mile pipeline capable of transporting 470,000 gallons of sweet crude every day from North Dakota to Illinois. Proponents say it would be safer than transport by rail and truck and benefit business in the Bakken oilfields and beyond. They might even suggest that it is part of the infrastructure necessary to make the nation more energy independent.

Opponents counter that it is an inherent risk to the water supply throughout the region. They say it destroys burial sites and other places that are culturally significant for the Standing Rock Sioux tribe, which has sued the U.S. Army Corps of Engineers for permitting the project.

As I’m sure you are aware, the currently stalled construction has spawned protests across the United States. Meanwhile, I’m told the vast majority of people in the Bakken region support construction.

Tensions are high and it’s a volatile situation for reporters like Renée. … Read the rest of this entry »

Checking the facts

In First Amendment on 11 Aug 2016 at 1:29 pm

Screen Shot 2016-08-11 at 11.48.45 AM

One of the most persistent complaints about “the mainstream media” is a perceived lack of interest in the truth. Many, many people think we sacrifice the truth in trying to be fair to each side – regardless of whether one or both sides are just plain lying.

There is truth to that complaint. We are hard-wired in many instances to seek a rebuttal. The mayor says this. His chief rival responds thusly. Etc. You see it every day in coverage of the presidential campaigns. Donald Trump says Hillary Clinton wants to abolish the Second Amendment. She says she doesn’t. Ad nauseam.

But which side is telling the truth?

Too often, we don’t even try to say. That is partly because ferreting out the truth is harder than he-said, she-said reporting.

Well, Green Valley News Editor Dan Shearer has stumbled on one way to get at the truth without having to do it all himself. He pointed me toward FactCheck.org. It describes itself here:

We are a nonpartisan, nonprofit “consumer advocate” for voters that aims to reduce the level of deception and confusion in U.S. politics. We monitor the factual accuracy of what is said by major U.S. political players in the form of TV ads, debates, speeches, interviews and news releases. Our goal is to apply the best practices of both journalism and scholarship, and to increase public knowledge and understanding. …
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Send in the clowns

In First Amendment on 4 Sep 2015 at 8:04 am
California Coastal Records Project

California Coastal Records Project

Ever heard of the Streisand Effect?

I had, but confess I forgot all about it until an attorney named David Groner attempted to prevent Wick’s Daily Iberian from publishing an online comment that questioned his integrity.

You can read about that case elsewhere on The Kicker. But I also wanted to make mention of something Groner said to Washington Post columnist Eugene Volokh. Volokh is an expert in free speech protections and an instructor at UCLA.

When asked about seeking an injunction against the Daily Iberian to prevent what appeared to be protected speech, Groner told Volokh, in part:

“The end result is classic Streisand effect. I made it worse by trying to correct it.”

Babs? How did she get in this story? … Read the rest of this entry »

The first five freedoms

In First Amendment on 9 Jul 2015 at 3:29 pm

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If you are in the mood to give up today, to just log off once and for all and try your hand at knitting, perhaps, or some profession involving fast food, allow me to help send you on your way: Fully one-third of Americans can’t name even one of the five freedoms outlined in the First Amendment. Only one in 10 was aware that freedom of the press is codified in the First Amendment to the U.S. Constitution.

Such morose nuggets of unhappiness pepper a new study conducted by the Newseum Institute’s First Amendment Center. And they are depressing.

Now take a deep breath. There are some hopeful signs in there, too. Nearly 70 percent of Americans say the press provides an important watchdog role. And some suggest the fact that only 24 percent say we in the media can be trusted to publish without bias merely reflects a more sophisticated understanding of the bias that we all share. In a world that favors Fox News, perhaps we are all just more comfortable with getting news from either the left or the right.

There is also some evidence that the way we feel about the First Amendment depends on the news of the day. For example, the study found that in the wake of the Boston Marathon bombings and the 2011 terrorist attacks substantially more people said the First Amendment “goes to far” in protecting our five freedoms. Those values have tended to return to normal in more normal times.

What can we do to reinforce the importance of the First Amendment? Free Speech Week is coming…


You don’t have to be an ass

In First Amendment on 11 Jun 2015 at 4:12 pm
This is Hanna, drinking an entire pot of coffee, which is awesome.

This is Hanna, drinking an entire pot of coffee, which is awesome.

I hereby nominate Associated Press Kansas statehouse reporter John Hanna for reporter of the year. His nomination comes not as a result of anything he’s written exactly, but by virtue of the quiet dignity he brings the profession and, well, this great thing he did the other day.

He happened to pass a closed door in the statehouse the other day and noticed through the window that the governor’s budget director was meeting with 27 Republican lawmakers. So he walked in, crossed his arms and waited. One lawmaker told him to get out, that he wasn’t invited. He stood his ground until the state’s budget committee chairman said he could stay.

From the story about the incident in The National Journal:

… In doing so, he learned that (the governor) was threatening to lay off prison guards, cut aid to public schools and reduce payments to health care providers and nursing homes if legislators didn’t agree to increase taxes. This is information the public needed to know in time to influence the debate — and to better understand the impact of (Gov. Sam) Brownback’s short-sighted decisions. …
Read the rest of this entry »

Where do we go from here?

In First Amendment on 8 Jan 2015 at 11:48 am
Photo courtesy Getty Images

Photo courtesy Getty Images

I woke up Wednesday morning wanting to further lampoon Kirby Delauter. Then masked thugs who can’t take a joke shot up a satirical publication in Paris, and suddenly the “you-can’t-print-that” crowd doesn’t seem so funny any more.

In case you’ve been living on an ice floe somewhere, Delauter is the absolutely precious Fredrick County, Md., councilman who threatened to sue if a local reporter ever put his name in the paper again. Because, well you know, “You have no right, etc.” Except, as he learned after a sustained and embarrassing #KirbyDelauter social media explosion, we do have the right to write “Kirby Delauter.” It’s granted by the very first of the amendments to the U.S. Constitution.

Delauter’s delusion is quaint in comparison to that of the men who shot up the Charlie Hebdo offices in Paris on Wednesday. Twelve people were killed and many others injured, apparently because the gunmen don’t appreciate anyone poking fun of their religious icons.

With due respect to Delauter, who I’m sure is a good man in many respects and certainly not a murderer, I think these two disparate tales are related. Despite communication tools that are better than any the world has ever known, we sometimes seem to be drifting farther apart from each other. We’ve erected our own personal silos in the form of ear buds and passwords, even as we share what we had for breakfast on YouTube. Strange isn’t it? Why don’t ISIS fighters use the Internet to bring understanding of their beliefs rather than for shock value? Why would Delauter say he doesn’t want to hear from a reporter, yet engage her on Facebook? And why do people presume and proclaim that they are right and others are wrong, when evidence to the contrary is only a click away?

I suppose we can’t know these things. … Read the rest of this entry »

The president’s visual releases

In First Amendment on 21 Nov 2013 at 3:43 pm
This is not the president of the United States as he wouldn't let us take a photo.

This is not the president of the United States as he wouldn’t let us take a photo.

A coalition including the American Society of News Editors and the Associated Press Media Editors decided to pick an interesting fight on Thursday. Or, more correctly, some of the country’s most prominent news leaders decided to take a stand in a fight initiated by the White House several years ago.

They are calling on the White House to allow greater access for press photographers and, significantly, for newspapers like ours to stop using provided photos from the White House.

In a letter to White House Press Secretary Jay Carney, the coalition is asking for a restoration of the old rules for photographers and the president. The press is asking that it be allowed to cover all public events and notes in the letter that the White House has been dodging this requirement (which is clearly spelled out in relevant case law) by suggesting many public events are private.

To put it politely, that’s a bunch of hooey. The letter references, for example, a July 30 meeting between the president and Israeli and Palestinian negotiators as one of many events from which photographers were excluded. That is clearly an event that carries significant public interest. And that is one of only dozens of examples.

The letter also clearly states that the press is not asking for access to the residence and that we know some matters of national security are off limits. … Read the rest of this entry »