No, the government doesn’t decide what ‘legitimate press functions’ are First Amendment worthy

A shot from the 2010 Wikileaks “Collateral Murder” video showing leaked footage of an Army helicopter gunner opening fire on a good Samaritan who had stopped to help innocent victims of an Army massacre in Baghdad in 2007. A Reuters photographer was killed in the first assault. Two children inside the van were badly injured; their father was killed.

Originally published at Just Security

Former Obama administration lawyers Bob Bauer and Ryan Goodman make a dangerous argument in their November 2 essay on Just Security: that coordination with a political campaign is outside the “legitimate press function” and therefore not protected by the First Amendment.

On its face, that would – for better or worse – deny constitutional protection to significant chunks of the political media on the left and right, where journalists (increasingly) take their cues – if not their instructions – directly from their partisan sources.

I’m not saying that seeking and taking guidance from partisan hacks is a good thing for journalists. (As I’ve argued before, political journalism is ideally anti-partisan, not partisan or even bipartisan.) But if it’s not protected by the First Amendment, that’s a Trumpian fantasy come true.

See, i.e., from Glenn Greenwald:

I would add that it’s not even arguable that websites like Breitbart and the Daily Caller collaborate closely with Republican Party leaders.

Bauer and Goodman were writing in the context of the civil suit brought in April by people associated with the Democratic National Committee regarding the hacking and dissemination of DNC emails in 2016. The defendants include elements of the Trump campaign, the Russian government – and WikiLeaks.

Although most of their essay is an argument that the Trump campaign isn’t protected by the First Amendment, they also address what they call the “misplaced concern that a defeat for this First Amendment defense puts media protections at risk.” Their position is that the First Amendment doesn’t protect media organizations if their conduct is outside the “legitimate press function” – as determined by the U.S. government.

They cite federal campaign regulation as a model:

It exempts standard journalistic activity, but denies those protections to conduct outside the “legitimate press function.” It is clear from disclosures by an internal WikiLeaks critic that Julian Assange targeted Hillary Clinton and sought to work with the Trump campaign and the Russians to secure her defeat. This is not a “legitimate press function.” And the conflation of WikiLeaks’ plan of campaign attack with standard journalistic activity undermines important distinctions critical to the protection of the free press. (Internal hyperlinks omitted).

Even if First Amendment protections can, in certain cases, not apply in election law, that doesn’t mean it’s something worth emulating. But in any case, the election regulations that determine what’s “legitimate” would easily validate  WikiLeaks.

A 2011 Federal Election Commission advisory (in the matter of Stephen Colbert and the Colbert Report) laid out how determinations are made:

In determining whether the press exemption applies to an entity, the Commission has conducted a two-step analysis. First, the Commission asks whether the entity engaging in the activity is a press entity. See, e.g.AOs 2005-16 (Fired Up) and 1996-16 (Bloomberg). Second, the Commission applies the two-part analysis in Readers’ Digest Ass’n v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y., 1981), which requires it to determine: 1) Whether the entity is owned or controlled by a political party, political committee or candidate, and 2) whether the entity is acting as a press entity in conducting the activity at issue (i.e., whether the press entity is acting in its “legitimate press function”).

To determine whether a press entity is acting in its legitimate press function, the Commission considers two factors: 1) whether the press entity’s materials are available to the general public, and 2) whether the materials are comparable in form to those ordinarily issued by the press entity. See AOs 2005-16 (Fired UP) and 2000-13 (OPHTHPAC).

In the matter of WikiLeaks: check, check, check.

I hate seeing Goodman and Bauer argue for strict government-determined delimitations on the First Amendment.

I am sympathetic to their First Amendment arguments relating to the Trump campaign and the Russians, because if there was actual collusion to commit a crime, then legal sanctions would certainly appear to be justified. But by lumping Wikileaks in with the others – especially when the DNC lawsuit does not even vaguely allege that Wikileaks or its founder Julian Assange helped plan the hack in the first place – they do harm to the free press

Last month, also in Just Security, First Amendment lawyer Floyd Abrams posited this hypothetical:

Suppose, though, that the reality was that WikiLeaks itself had discussed with Russian authorities before the hacking how they would disseminate the information obtained so as best to embarrass the Clinton campaign. It is not a bizarre bit of conjecture. In that circumstance, there would be no First Amendment protection for WikiLeaks, just as there would be none if the campaign had done so.

I found that somewhat glib. But it’s also a different argument than the one Bauer and Goodman make. We journalists know that if we pro-actively suborn an illegal act, all bets are off.

I much preferred the May 2017 essay (also on Just Security!) by Elizabeth Goitein, who co-directs the Brennan Center for Justice’s Liberty and National Security Program. She wrote, in the context of then-FBI Director James Comey’s indication that criminal charges were pending against Assange:

He explained his reasoning as follows: Publishing classified information “crosses a line when it moves from being about trying to educate a public and instead becomes just about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting.” That, to Comey, describes WikiLeaks’ behavior: “[I]n my view, a huge portion of WikiLeak’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important controversies, but is simply about releasing classified information to damage the United States of America.”

In other words, the line Comey seeks to draw is not between leaking classified information and publishing it, but between publishing it for “good” reasons and publishing it for “bad” ones. Those who do the former are “journalists,” while those do the latter are not. And presumably, the Department of Justice gets to say which is which—at least when it comes to bringing a prosecution.

Goitein didn’t think much of that:

How will the government decide which outlets have an acceptable motivation? Comey didn’t go into detail, but he pointed to one indicator: “American journalists . . . will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or—or innocent civilians anywhere in the world. And then they work with us to try and accomplish their important First Amendment goals while safeguarding those interests.”

In other words, media outlets that work in partnership with the U.S. government and are willing to self-censor based on official claims of national security are journalists. Those who conceive their role differently are not.

Former Obama White House associate counsel Andy Wright (also in Just Security!) warned this past May that: “First Amendment precedent, applied here to a platform like WikiLeaks could later serve as the basis of opinions affecting the Washington PostWall Street Journal, or the New York Times.” Wright noted that if WikiLeaks can be proven to have “advance knowledge coupled with a commitment that incentivizes the criminal acts,” then the case moves “closer to the line between the First Amendment and criminality.”

But, he wrote:

Mostly, the DNC complaint repeats the allegation that WikiLeaks published material it knew had been stolen in order to maximize political damage to Clinton. The DNC describes WikiLeaks as the publisher of “leaked or stolen confidential and classified information,” and Assange as a person who “has exhibited support for the Russian government and has hosted a talk show on Russia Today (“RT”), a television propaganda outlet funded by the Russian government.” In the “Nature of the Action” section of the suit, the DNC alleges that Russian operatives “transmitted [stolen] data to Defendant WikiLeaks, whose founder, Assange, shared the defendants’ common goal of damaging the Democratic party in advance of the election.”

What is missing is a direct allegation that Assange or WikiLeaks had knowledge of the plan to steal DNC information ahead of time, or that they knowingly incentivized the criminal behavior.

So count me as firmly with my former Intercept colleague Glenn Greenwald and Trevor Timm, the director of Freedom of the Press Foundation, when they wrote, within hours of the filing of the DNC lawsuit:

The DNC’s suit, as it pertains to WikiLeaks, poses a grave threat to press freedom. The theory of the suit — that WikiLeaks is liable for damages it caused when it “willfully and intentionally disclosed” the DNC’s communications (paragraph 183) — would mean that any media outlet that publishes misappropriated documents or emails (exactly what media outlets quite often do) could be sued by the entity or person about which they are reporting, or even theoretically prosecuted for it, or that any media outlet releasing an internal campaign memo is guilty of “economic espionage” (paragraph 170).

Look, Assange is not my kind of journalist. Although I’m proud to say that I was the first journalist to write about the extraordinary “collateral murder” video WikiLeaks released in April 2010 — and I’ve published many articles since then based on records WikiLeaks uncovered — I think much of what Assange has done lately is despicable. Although when I was Washington Editor of the Intercept, we mined the hacked DNC emails for legitimate news stories, I abhorred the heedless, unedited publication of the non-newsworthy and personally hurtful ones.

But Assange remains a journalist. (He even won the 2011 Martha Gellhorn prize for journalism.)

In the Trump era, when the president of the United States is using his office to attack journalists and journalism itself, the First Amendment is a key bulwark of liberty.

Here’s what Steve Vladeck, the co-editor-in-chief of Just Security and a law professor at the University of Texas School of Law, wrote to Goodman in a Q&A on the site (of course) in 2017, in the context of potential Espionage Act charges against journalists – criminal charges related to the simple possession of classified information: “I’m skeptical that Assange (or the New York Times, for that matter) would have a clear-cut First Amendment defense to the publication of classified information in anything but the most extreme case of public concern (and perhaps even then).”

Vladeck continued:

I’m just not that sanguine about the prospect of the Supreme Court recognizing a First Amendment right to publish national security secrets in anything but such a compelling case (and wonder, for example, if Snowden’s disclosures, at least of the phone records program, would fit the bill). Simply put, the principal historical constraint on prosecutions of the press for publishing national security secrets has been prosecutorial discretion, not constitutional law. And so one does not need to have a particular view about Assange (or think that he is or is not a journalist) to have a view on the implications here; the key is if he’s prosecuted as a third party under the Espionage Act, which, of itself, would set a dangerous precedent for press freedom.

And with a Supreme Court increasingly stacked with far-right judges who read the Bill of Rights very narrowly, now is not the time to test its protections.

Trump’s use of troops for political stunt comes under heavy fire

Obama in Florida.

Donald Trump’s decision to send military troops to the southern border is being increasingly criticized as a naked and cynical move to make political points with American troops. (See my October 30 article, Trump willingness to use the military for crassly political purposes sets off alarms.)

Former President Barack Obama on Friday combined mockery and outrage as he told the audience at a political rally in Florida about Trump’s move.

“They’re telling you the existential threat to America is a bunch of poor refugees 1,000 miles away,” he said. “They’re even taking our brave troops away from their families for a political stunt at the border. And the men and women of our military deserve better than that.”

Former Obama-era Secretary of Defense and Republican Sen. Chuck Hagel told CNN  on Thursday that Trump’s move “is folly. This is political distraction of the highest magnitude.”

Trump is “using our military and our troops in a very political way that … really casts a lot questions about the competency of his leadership,” Hagel said

He continued: “I know the kinds of sacrifices these men and women are involved with every day, and their families. To use them as political pawns like this for a complete fabrication is really wrong.”

Rep. Adam Smith, the ranking Democrat on the House Armed Services Committee, told the Washington Post’s Greg Sargent that a Democratic House would hold hearings on the decision.

“We would ask the Pentagon to come in and explain to us in an open public hearing what they’re doing and why,” Smith told Sargent. “I don’t think we should let the president get away with this type of policy with no justification and no explanation for it.”

A letter from Smith, three other Democrats who would take over top House investigative committees, and 104 of their colleagues to Defense Secretary Jim Mattis demands an explanation, while asserting that “This effort is nothing short of a militarization of the southern border to score political points and stoke misleading fears among Americans regarding immigrants.”

Meanwhile, Newsweek reporters James Laporta, Nicole Goodkind and Chantal Da Silva found that “multiple Pentagon sources” say the move “took officials by surprise, with many senior-level Defense Department officers saying they believed the move was politically motivated and a waste of money.”

“There is no practical or tactical reason for this to happen,” one source told Newsweek.

The AP’s Robert Burns and Lolita C. Baldor point out how the move goes counter to Mattis’s core mission:

Defense Secretary Jim Mattis has left no doubt that his top priority as leader of the military is making it more “lethal” — better at war and more prepared for it — and yet nothing about the military’s new mission at the U.S.-Mexico border advances that goal. Some argue it detracts from it.

They also quote James Stavridis, a retired Navy admiral and former head of U.S. Southern Command, saying the troops should be preparing for combat and other missions, “not monitoring a peaceful border.”

Trump, meanwhile, backed off his ominous statement on Thursday, indicating that the active-duty troops might open fire on migrants at the border. (See my November 1 post: Trump mocks rule of law by saying active-duty troops might open fire on migrants.)

“I didn’t say shoot. I didn’t say shoot,” Trump said Friday.

“They won’t have to fire. What I don’t want is I don’t want these people throwing rocks,” he said. “But if they do that with us, they’re going to be arrested for a long time.”

Trump mocks rule of law by saying active-duty troops might open fire on migrants

On the migrant caravan. (Save the Children)

Donald Trump said Thursday that he is ordering the active-duty U.S. troops he is sending to the southern border to open fire on migrants if they throw rocks.

Trump is using the last days before the midterms to conjure up an “invasion” scenario to rile up his political base.

But in threatening to actually use the military against would-be asylum seekers, he’s also making a mockery of the rule of law, which specifically prohibits U.S. troops from engaging in domestic law enforcement. (His proposal to limit the ability of migrants to request asylum also appears to break U.S. and international law.)

Asked by a reporter if U.S. troops might fire on the migrant caravan full of women and children that is currently about 900 miles away, and moving very slowly, Trump said: “I hope not, I hope not — but it’s the military.”

Then he explained: “They want to throw rocks at our military, our military fights back. We’re gonna consider, and I told them consider it a rifle. When they throw rocks like they did at the Mexico military and police, I say consider it a rifle.”

The scenario is absurd. When what’s left of the rag-tag caravan makes it to the U.S. border, their intent is to apply for asylum, not storm the barricades.

The Pentagon has insisted that the troops being sent to the border would operate purely in a supporting role, helping with logistics, transportation and engineering. That’s because the troops’ activities on domestic soil are strictly limited by the Posse Comitatus Act, which establishes the prohibition of military involvement in domestic law enforcement.

University of California at San Diego law professor Harry Litman does a particularly effective job of explaining the significance in a Washington Post op-ed today:

Its obscure name and rare deployment notwithstanding, the Posse Comitatus Act enshrines the bedrock democratic idea that civil society is separate from and superior to military force, and that regulation of citizens by military is antithetical to liberty.

Civil law enforcement is governed by constitutional protections and accountability to the court. Military force is governed by the law of war and the imperative of national defense against other militaries. They serve critically different functions, practically and morally; and they ought not overlap.

I wrote on Tuesday about the danger posed by Trump’s casual use of active-duty troops for nakedly political purposes.

Vermont Senator Patrick Leahy expressed outrage at Trump’s lates comments: “I didn’t think I’d live to see the day when an American president threatens lethal military force against individuals who are throwing rocks. The professionals in our military are among the best in the world, and have invested countless hours and tax dollars in training about the lawful use of force to accomplish their mission. The illegal and immoral practice the President endorsed is beneath their and our country’s dignity.”

Jamil Dakwar, director of the ACLU’s human rights projects, tweeted:

Also today, Deborah Pearlstein, a Cardozo law school professor, pointed out that the current deployment of about 2,000 National Guard troops is arguably a violation of the law.

The Guard deployment was authorized under Title 32 of the U.S. Code, which allows the Guard to be used for operational homeland defense activities. That means providing protection that is “critical to national security, from a threat or aggression against the United States.”

Pearlstein, in a conference call arranged by the American Constitution Society, said there is obviously no immediate threat to the homeland – nothing remotely like an “invasion” of the sort Trump warns about.

“I actually think it is a national security concern,” she said, but only “because it is a national security threat for the president to apply troops in this way.”

She continued: “The word ‘war’ and the words ‘national security’ get used all the time…. If you care about those kinds of threats out there, avoiding the temptation to let that language be overused and misused is very important.”

Clapper and Hayden liken radicalization of extremists by Trump to ISIS and al Qaeda

Clapper and Hayden at George Mason University. (C-SPAN)

In an extraordinary exchange on Wednesday first reported by Deep State website editor Jefferson Morley, former director of national intelligence James Clapper and former CIA head Michael Hayden directly likened the radicalization of domestic terrorists by Donald Trump to the radicalization of extremists by ISIS and al Qaeda.

Clapper, who was the intended recipient of one of the pipe bombs sent to prominent Trump critics last week, said Trump’s words were having a radicalizing effect “not unlike what I experienced with the likes of ISIS.”

“And as long as a ‘stable genius‘ creates an environment that can seemingly condone this sort of behavior, we’re going to have more of it, I’m convinced,” he said.

Hayden agreed. “I don’t want to oversimplify this and create an equivalency, but there are parallels.”

Clapper said there’s a new breed of “political dissidents” who “now have a set of grievances to which they can attach themselves that have been essentially articulated by the president of the United States of America.”

The two former intelligence heads were the keynote speakers at a discussion on threats to U.S. democratic institutions hosted by the National Security Institute at George Mason University’s Antonin Scalia Law School on Wednesday.

You can watch the video of the discussion of radicalization here, on the C-SPAN website.

The event was moderated by Atlantic editor Jeffrey Goldberg, who asked the two men:

Do you think this is the end of it, or do you think we’re in the middle of a long process in which people are being radicalized and are going to try to carry out their anger violently?

Clapper replied:

Regrettably, yes, I think personally we’re probably in for more of this sort of thing….

This is how people get energized, radicalized. It’s not unlike what I experienced with the likes of ISIS, who was very successful at using social media only, to recruit and radicalize people. And it’s almost, to me, a very similar psychology at work here. And as long as a “stable genius” creates an environment that can seemingly condone this sort of behavior, we’re going to have more of it, I’m convinced.

Hayden followed Clapper’s statement with a long explanation of radicalization that I think is worth getting on the record:

I don’t want to oversimplify this and create an equivalency, but there are parallels. We were asked, looking at the radicalization of Islamist terrorists, alright? One of the questions, one of the arguments that we had, is, well, is this the ideology of al Qaeda or Isis, or is this really just unhappy young males who don’t have a good job. And the answer is yes, alright?

What’s the character in children’s fiction, the pushmi-pullyu? Remember that? This is a push-me-pull-you. So, societies create folks — more often than not young men — who are unattached, who are disappointed, who are fearful, who feel as if they have grievance, and they look for something larger than self – and something larger than self to which they can attach themselves.

Now in some cases it is a very positive step. They join the Army. They join the boys club. Alright? The way I used to phrase it back at CIA was this probably has more to do with the Crips and the Bloods than it does with the Holy Koran when it comes to radicalization. With the meaning being that the same dynamic that draws someone to join a gang is probably the same personal dynamic that makes someone attach that grievance to this larger cause. But then the point I make is: It matters what gang you join.

And so what you get are individuals who are unhappy – violence-prone on their own, with a great sense of grievance who now get legitimization and justification for their grievance by attaching it to something larger than themselves.

For an Islamist terrorist, it could be a particularly violent version of one of the world’s great monotheisms. For political dissidents, they now – and this is the newness part — they now have a set of grievances to which they can attach themselves that have been essentially articulated by the president of the United States of America.

And if you look at the bomber, I mean, it’s all about – [Goldberg interjects: “It’s all there on the van.”] It’s all there.

If you look at the incident in Squirrel Hill in Pittsburgh, alright? There’s a latent anti-Semitism. But the proximate cause was his belief that international Jewry was sponsoring the invasion of America from that caravan, still a thousand miles from the Rio Grande — which has been a constant theme coming out of the White House.

So I guess to answer your question a little bit, I’m kinda with Jim, in the current atmosphere I don’t think we have any reason to believe that this is going to stop. It’s just hard to predict when that combination may happen again.

Morley has more, including the two men’s comments on how Trump’s behavior is damaging the country’s democratic institutions, perhaps irretrievably. “We have four years to stop him,” Morley quotes Hayden. “We don’t have eight.”