#first amendment|

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"'The show must go on' is more than a showbiz cliché. In this case, it’s also a constitutional right."

- First Amendment Center President Ken Paulsen, on the decision of Carrollton, Ga. Mayor Wayne Garner to ban a performance of "Rocky Horror Picture Show" at the city's arts center. Paulsen explains why the good mayor's censorship is completely and utterly unconstitutional. 

Meanwhile, in Minneapolis ...

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A pretty good basic primer on one of my pet issues. Got a camera in your pocket? Read this.

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"[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

Judge Kermit Lipez, 1st Circuit U.S. Court of Appeals, Glik v. Cunniffe No. 10-1764, 2011 U.S. App. LEXIS 17841 (1st Cir. Aug. 26, 2011) (pdf)

This is a pretty big ruling in an area of law that's been getting a lot of attention this summer. Read the Citizen Media Law project's rundown of the case and yesterday's ruling. It is informative and exuberant.

Oddly enough (or not), The Daily What has been tracking the issue quite closely. Here's a good roundup.

[practicalobscurity]

"... I got a look at Samuel Beckett’s handwriting. That was tops. It is crabbed, which is a word that is often used in novels to describe handwriting, but rarely serves as a realistic adjective to use in everyday conversation."

Mike writes sincerely about his research trip to College Park.

I have a personal fondness for the term "crabbed" since it helps lead off one of the most influential dissents in the history of the U.S. Supreme Court's jurisprudence on the First Amendment, Justice Stewart's in Branzburg v. Hayes:

"The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society."

In Branzburg, the court ruled 5-4 that requiring reporters to disclose confidential information to grand juries did not abridge their rights to freedom of speech and press under the First Amendment. One could easily read the decision as saying that there is no "journalist's privilege" and reporters have to give up their secrets when the government tells them to. However, in a clear and forceful dissent, Stewart explained that, in many circumstances, reporters need to be able to guarantee confidentiality to their sources in order to gather important information and share it with the public, and in those circumstances the government should be at least be required to show that the information is directly relevant to the case at hand, is not available by other means, and is more vital to the ends of justice than the need to protect the reporter's First Amendment rights. Subsequently, many federal courts have recognized a limited journalist's privilege. Stewart's basic reasoning was, for example, the basis for Judge Leonie Brinkema's decision a couple of weeks ago not to force the New York Times' James Risen to disclose his sources for a book he wrote about some of the CIA's more harebrained schemes to deny Iran nuclear weapons capabilities. Stewart's test has also been the model standard for dozens of state "shield laws" which create a privilege for reporters to keep their secrets from the prying eyes of state cops and courts.

It is exceedingly rare that a dissent has this kind of impact, basically making law by opposing the majority decision. You could argue that Stewart's rejection of the "crabbed" approach to the journalist's privilege has helped contribute a great deal to transparency and accountability in this country.

So yeah, I like "crabbed."

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And Mr. Drake, as to that, this matter is closed and I wish you the best of luck in the rest of your life.

- Judge Richard D. Bennett, speaking to Thomas Drake at a July 15, 2011 sentencing hearing at which Drake was sentenced to a year of probation and 240 hours of community service for a misdemeanor charge of exceeding authorized use of a government computer.

Drake is one of the government whistleblowers targeted by the Obama administration. Judge Bennett said the prosecution, and particularly the two-and-a-half-year delay between the government search of his home and decision to charge him with a crime, was "unconscionable" and compared it to tyrannical acts of the British government before the American Revolution.

I've written about the Drake case, and others, here, here, and here. You can get the full transcript at Secrecy News.

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DON'T DISAPPOINT ME.

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This sweeping and important piece of commentary explains why everyone should care about the whether the Bush and Obama administrations' under-reported war on whistleblowers is a threat to American democracy.

Please read it.

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A follow-up to my post last week about the Obama administration's unprecedented pursuit of government leaks, and the collateral effect it may have on freedom of the press. In that post, I mentioned subpoenas to the Times' James Risen over his reporting on the CIA.

Well, he got another one.

Risen told the Times, "I am going to fight this subpoena. I will always protect my sources, and I think this is a fight about the First Amendment and the freedom of the press.”

I encourage you, again, to read my longer article in the Silha Bulletin about why advocates of transparency and open government are up in arms over Obama's prosecution on leakers.