The criminalization of journalism is the worry at the heart of the Julian Assange case, as a UK court mulls the possibility of his extradition to the United States to face Espionage Act charges, essentially for publishing truthful information that he lawfully obtained (more).
Today is Student Press Freedom Day, a day to recognize the important First Amendment rights and vital Fourth Estate function of journalists in schools, colleges, and universities.
Speech on college campuses, if more in a protest vein than a journalistic vein, has seen lately a wave of efforts at criminalization. Charges might not be on the scale of the federal Espionage Act. But the deployment of criminal law in the suppression of speech is bad news at any level.
Student journalism came face to face with the criminalization of protest speech recently at Northwestern University.
The Intercept reported on February 5 that students at Northwestern University had embodied their pro-Palestinian protest in a parody of The Daily Northwestern newspaper. The parody was regarded by other students and members of the community as offensive and antisemitic.
The newspaper publisher—a nonprofit comprising alumni, faculty, staff, and students, and distinct by design from the student editorial board—complained to police. And when the perpetrators were identified, prosecutors charged them with "theft of advertising."
"The little-known statute appears to only exist in Illinois and California, where it was originally passed
to prevent the Ku Klux Klan from distributing recruitment materials in
newspapers, The Interceptreported. "The statute makes it illegal to insert an 'unauthorized
advertisement in a newspaper or periodical.' The students, both of whom
are Black, now face up to a year in jail and a $2,500 fine."
The Daily Northwestern published an editorial demanding that charges be dropped. The publishing entity and prosecutors capitulated, Seth Stern recounted for the Freedom of the Press Foundation.
Stern lauded the student editors, and I agree. They didn't like their nameplate being appropriated by an offensive partisan protest. But that wasn't the point. Stern explained:
After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided
the Marion County Record last August, purportedly to investigate
whether reporters somehow committed identity theft by confirming a news
tip on a government website. In October, authorities charged
a reporter and publisher in Alabama with violating a grand jury secrecy
law—plainly inapplicable to journalists—by reporting on a criminal
investigation of a local school board. Six months before that, an
Arizona state senator got a restraining order against a reporter for knocking on her door.
There’s more. A citizen journalist in Texas is hoping
to go to the Supreme Court with her lawsuit over an arrest for
violating an archaic law against soliciting “nonpublic information.” The
City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.
There are cases in which I will go to bat for criminal law enforcement against protest activity. Protestors don't have a right to trespass on private property after being asked to leave peaceably, which seems to have happened at Brown University. And they don't have a right to cause damage or to put other people in harm's way.
First Amendment doctrine is not perfect, but it has plenty of experience drawing this line. What's worrisome about the latest incidents of speech criminalization is that we seem to have to be re-litigating some easy questions.
When I was an intern at the Student Press Law Center many moons ago, there were five statutes in the United States protecting student media freedom. Today there are 17. Read more about the steady but sure advance of student media freedom at the SPLC and how you can recognize student media freedom at Student Press Freedom Day.
Late last week, the Supreme Court of India struck a blow for transparency and accountability when it ruled unconstitutional a system of anonymous political donation.
In a 2017 law, India had adopted a system of "electoral bonds." These are not investment bonds. Rather, to make a political donation, a donor was required to buy a political bond from the State Bank of India, and the bank then gave the money to the indicated political candidate.
The bond system was adopted ostensibly to further transparency and accountability. By requiring all political donations to be processed by the state bank, regulators could ensure compliance with donor restrictions. The system was supposed, then, to balance donor anonymity—a legitimate extension of free speech rights—with anti-corruption regulation.
P.M. Narendra Modi speaks to Pres. Biden at the G20, 2022.
But as Darian Woods reported for The Indicator, the party in power of Prime Minister Narendra Modi received 90% of donations. It seems less likely that imbalance represented overwhelming enthusiasm for the Modi administration and much more likely that corporate donors sought favor with the administration and feared retaliation otherwise, despite their seeming anonymity. For while they were anonymous to the public, their identities were known to the state bank. And the state bank is under the control of the administration.
The India Supreme Court ruled that the electoral bond system is incompatible with the fundamental "right to know" (RTK), that is, with Indian norms of freedom of information (FOI). I wrote in 2017 about India's Right to Information Act (RTIA), a statutory instrument akin to the U.S. Freedom of Information Act (FOIA). FOI, or access to information (ATI), for India, though, is in sync with contemporary norms elsewhere in the world, notably Europe, where RTK or FOI is recognized as a human right. Courts such as the India Supreme Court, like the Court of Justice of the EU, therefore have the constitutional enforcement power of judicial review.
The India Supreme Court, as it often does on important constitutional questions, surveyed other common law nations. And despite our weak and non-textual recognition of FOI as a constitutional right, the United States earned several mentions. Saliently, the court cited the old stalwart, Buckley v Valeo (U.S. 1976), for "concern of quid pro quo arrangements and [the] dangers to a fair and effective government. Improper influence erodes and harms the confidence in the system of representative government." Disclosure, the India court reasoned,
helps and aides the voter in evaluating those contesting elections. It allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. Secondly, it checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co. (U.S. 1936), [disclosure] holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations.
For a more recent vintage, the India court cited Nixon v. Shrink Missouri Government PAC (U.S. 2000):
[T]he Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This effects the integrity of the electoral process not only in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being too compliant with the wishes of large contributors.
So the India court fairly observed that the U.S. Supreme Court has been willing to unmask donors, even if the Supreme Court has lately been less than enthusiastic about regulations it once, in a Buckley world, approved. Indeed, even as the U.S. Supreme Court rejected the disparate treatment of corporations in Citizens Unitedv. FEC (U.S. 2010), it approved of disclosure requirements.
The India court found support for disclosure in defense against corruption in other national regimes, too, for example, in Canada and Australia. Alas, there, comparisons with the United States deteriorate in practice. The India Supreme Court did not mention the dark (money) side to America's affair with transparency. Read more at the Brennan Center for Justice.
At the rally today, I spoke about my experience with freedom-of-information law and read parts of a letter from U.S. law professors to U.S. Attorney General Merrick Garland. The letter asks the U.S. Department of Justice to drop Espionage Act charges against Assange and abandon the request for his extradition from the UK.
The High Court in London heard arguments today that Assange should have a right to appeal to the courts over his extradition, which the British government has approved. Read more about today's proceeding from Jill Lawless at AP News. The case continues in the High Court tomorrow. Protestors crowded on the street outside the London courthouse today.
Attorney Kevin Hart speaks to students today, Feb. 20, at UMass Law School about his career path in public service in Massachusetts state government, and earlier, in the Town of Bridgewater.
Hart is now chief counsel for the Joint Committee on Transportation in the Massachusetts legislature. He graduated from UMass Law in 2015. He came to UMass Law with a BA from Stonehill College and an MPA from the Sawyer Business School at Suffolk University.
Hart was the second teaching assistant I hired at UMass Law in Torts I and Torts II. (The first is doing well too.) He wrote a characteristically excellent research paper on the modern inutility of the historical negligent-delivery-of-telecommunication cause of action.
I'm not saying that my teaching causes meteoric career success. I'm just observing correlation.
Volodymyr Venher has. He's dean of the law school at the National University of Kyiv-Mohyla Academy (KMA). Alarms happen once or twice a week, he told the ABA Seasoned Lawyers Interest Network. Russian attacks target civilian infrastructure. "Sometimes it's really scary," Venher said.
Kyiv has a protective barrier that includes U.S. Patriot missiles, Venher said. But some Russian missiles get through. Two weeks ago, he said, a missile struck 300 meters from his apartment. He lives on the 11th floor, and the building shook, loosening bricks and concrete.
A KMA professor in biology was killed at her home in January.
Kyiv
has it a little worse than Lviv, which sees fewer missile attacks, Dean
Venher said. But Kyiv is "paradise," Venher said, compared with
Kharkiv, where Russia has targeted universities.
Faculty and students at KMA Law carry on. Venher said that to endure the constant threat of war, it helps to maintain some semblance of normalcy. His law school ceased operation for only one month, he said, in March 2022. Classes resumed online in April and in hybrid form for the start of a new academic year in September 2022.
Naturally the school was worried about what enrollment would look like. But students wanted normalcy, too. Of an admitted class of 120 in fall 2022, 110 turned up in person to start the year, Venher said. There are occasional setbacks in loss of electricity and internet outages. The internet problem was solved when the school bought two Starlink subscriptions, Venher said.
Law faculty try to continue both their teaching and research, Venher said. Many focus their work on what it will take to rebuild Ukraine after the war. Some focus on humanitarian needs. Some, including Venher, focus on the law of war and problems of accountability.
There is a mental toll. After missile strikes, one can see people's unhappiness, Venher said. Many people are afflicted with depression and survivor guilt.
"The human brain can adapt to anything," Venher said. "We hope for a better future."
KMA Law is keen to connect with partners abroad. Connecting electronically with the outside world helps to keep spirits up and maintains a status quo ante, a connectedness that would have been ordinary before the war. Venher said that the school welcomes even opportunities for law students to practice speaking English with their counterparts elsewhere. The school is keen too for faculty to find opportunities to present research and expertise.
The school also welcomes resources. A French benefactor recently donated a collection of law books, and the school could use more legal resources in English and French. Under the circumstances, the school cannot afford pricey legal database subscriptions, Venher explained. So students and researchers are more dependent than usual on hardcopy resources.
A new website, Flaming Travel aims to fill a market gap in tour and adventure searching, giving world travelers a one-stop shop to search multiple providers.
Flaming Travel is the brainchild of my friend and aptly self-described serial entrepreneur Ben Jones. The multi-talented and polyglot Jones is head of OutStride, where he is a founder coach for other and would-be entrepreneurs. Read about Ben's story at Medium, read his writing at Medium, and follow his adventures on Instragram.
At present, Flaming Travel lists tours by UK-based Lupine Travel and expat-China-founded Young Pioneer Tours. Further development will see the addition of more providers. The idea is to make it faster and easier especially for frequent travelers to identify opportunities to visit new destinations.
Besides a search interface, Flaming Travel allows users to sort data by date, duration, company, country, and the number of countries on an itinerary. So at minimum, Flaming Travel will save users time over visiting multiple websites.
Most travel company websites (notably excepting Lupine: shout out to Megan & co.) list tours by destination or region and have no comprehensive list by date. But frequent travelers might be more concerned about fitting opportunities into available windows of time off work, than concerned about destination. Ability to sort market data chronologically will be a boon to getaway planners.
This post is not an ad, by the way. I'm eager to share Ben's innovation and stimulate interest in world travel.
American tort law students usually are acquainted with the so-called "baseball rule." The "rule" represents the legal supposition that fans who attend baseball games understand and accept the risk that a foul ball might fly into the stands and cause injury. More accurately stated in contemporary terms in American tort law, the "rule" is that a professional baseball enterprise does not have a duty to avert injuries that are part of the game of baseball.
You can tell from my quote marks that I don't like the characterization of "the baseball rule" as a rule, because it's not. The "rule" is oft stated as such in popular culture and too often in law. But it does not represent a consistent "rule" of decision in tort cases. Plaintiff lawyers have circumnavigated it many times, justifiably so. And if the "rule" were a rule, it would be a bad one. Horrific injuries happen too often, such as shattered eye sockets and blinding. Two children were critically injured in the minor leagues in the past season.
You can see the problems even on the face of the "rule." Not everyone who goes to a baseball game knows that there is a danger of being hit by a foul ball, especially the risk of substantial bodily harm in a line drive with a 100-mph exit velocity. Baseball clubs put up some nets specifically to protect fans from these injuries in some places, such as behind home plate, but the nets fall far short of full coverage. Fans sitting in unprotected seats might not see the difference. Certainly fans might not know the scope of potential injury. Finally, the assumption-of-risk doctrine that animates the "baseball rule" was crafted to preclude lawsuits by sport participants. The doctrine has been extended tentatively and sometimes dubiously to fans.
As in many tort cases, the functioning of the tort system in foul-ball cases is being disrupted by arbitration clauses in baseball ticket terms and conditions, and by non-disclosure agreements in settlements. Secrecy impedes tort's norm-setting and deterrence functions. If fans don't understand the danger and frequency of foul ball injuries, they're unlikely to find out from reported cases.
Hosted by Melissa Bird for the AMTL, the panel comprised Ken Reed, Jordan Skopp, and Greg Wilkowski. Reed is Sports Policy Director for League of Fans, a Ralph Nader project that covers the foul-ball problem. Skopp, a New York realtor, is the activist-founder of the grassroots Foul Ball Safety Now!, which hosts a trove of information. Wilkowski is a Chicago lawyer presently representing plaintiffs in a class action against the Peoria Chiefs (e.g., Journal Star).
I'm as close to a freedom-of-information absolutist as you'll find.
I've said that about myself. I stole the notion and adapted the line from a personal hero, the renowned Professor Jane Kirtley, whom I was privileged to meet first in her legendary tenure at the helm of the Reporters Committee for Freedom of the Press (RCFP). Professor Kirtley utters the line as a First Amendment absolutist, and she's right: I've met no one so thoroughly committed to a free press, and able to persuade you she's right to boot.
Access to information, or frustration over the lack thereof, when I was a university journalist was a major force that drove me to law school. I was a strident 23-year-old law student, a legal intern at the Student Press Law Center (SPLC) and a willing convert to the cause, when I first met Kirtley in person.
It was the 1990s. Bill had cheated on Hillary, and Milli Vanilli's Grammy was revoked. I was well convinced that the world would be a better place if there were no secrets at all: if governments kept open books, and everyone walked around with their hearts on their sleeves.
At the joint offices of the RCFP and SPLC, I had access to a closet that held all of the publications on freedom of information. I devoured them. I was ready to build my Utopia.
I'm as close to a freedom-of-information absolutist as you'll find.
I still say the line. But I admit, sometimes now I say it with less conviction.
Yesterday on NewsHour, a cognition expert said that we experience an increase in compassion and empathy as we age. That's it, I thought. That's why the utterly fictional characters on This Is Us made me cry like it was my own family. That's why I'm no longer so confident in my absolutisms. It's biology, and I can't help it. I'm getting old and soft.
In 2006, I was still strong. I knew right from wrong. I was an absolutist terror. That was the year that WikiLeaks was founded. That was the year that Julian Assange came into my life.
Julian Assange and I are the same age, born just months apart and a world away, in 1971. By the time I learned of him, we were 25, and his biography made me feel like I'd been sitting on my hands watching the world go by. He had hacked NASA when he was a teen in Melbourne. He was charged with computer crimes by age 20.
But he wasn't a ne'er-do-well; he obeyed a nascent code of ethics for a new, technological age. He is credited with originating "hacktivism." He showed what government, especially the U.S. military, was up to behind virtual closed doors. He was out to make the world better by pulling back the curtain. Unapologetic, radical transparency.
When Assange co-founded WikiLeaks in 2006, freedom-of-information absolutism was the ethos. Anyone in the world with access to secrets could pour them anonymously into Wikileaks's servers in Iceland: a deliberate jurisdictional choice for information laundering. The drop-box technology was sleek. The morality was a-, not im-. Wikileaks would publish it all. The democratic potential of the internet would be realized. All the citizens of the globe would judge. Brilliant.
There were remarkable successes. Notable was the "collateral murder" revelation, that U.S. soldiers had killed 18 civilians in a Baghdad helicopter attack in 2007. WikiLeaks also revealed the toll of friendly fire deaths, many of which had been covered up. Conclude what one would about the military interventions in Afghanistan and Iraq, the people whose lives were on the line, as well as families and voters back home, deserved to see the good, the bad, and the ugly of war.
And it wasn't just about war. WikiLeaks had big banks in the crosshairs (2011, 2013). In 2016, a trove of records (e.g., Toronto Sun) revealed that Hillary Clinton campaign head John Podesta had called Bernie Sanders a "doofus" over his criticism of the Paris climate accord. Good to know.
But after the Iraq War apex, things had started to unravel. WikiLeaks knew a lot; maybe too much. Its revelations tested the as close to ... as part of my mantra. Absolutism's gloss started to tarnish.
Is there really social good in forecasting troop movements, when soldiers would be slaughtered as a result? Even Julian Assange saw it: Unmasked middle eastern informants cooperating with western forces, and the informants' families, faced brutal retaliation by militias and dictators. It was hard to work the math on absolute transparency to make the benefits always outweigh the costs.
So in 2010, WikiLeaks forged an alliance with The Guardian, and later other news outlets. With absolutism baked into the technology, WikiLeaks had no way to sift information to ensure, quite literally, that people would not be killed as a direct result of publication.
Journalists do know how to do that; that ethical balance, to minimize harm, is the very essence of journalistic professionalism. So WikiLeaks would turn some of its information over to journalists, who would screen for the rare but real need for confidentiality.
The collaboration was rocky, short-lived, and at best only partly successful. The missions of absolute transparency and journalistic judgment were not so easily reconciled. The story has been told many times, for example in Vanity Fair's 2011 "The Man Who Spilled the Secrets," and still is dissected in journalism schools.
Fortunes changed for Julian Assange. Negative words such as "anarchist" and "seditionist" took the place of positive words such as "crusader" and "activist." Allegations of rape, which Assange denies vehemently, surfaced in Sweden, which sought Assange's extradition from the UK. Conspiracy theorists, who are not always wrong, alleged that the Sweden allegations were a ruse to bring about Assange's extradition to the United States, which had indicted him, from a jurisdiction that would accede more readily than England would.
In London, Assange sought refuge in the Ecuadorean embassy, where he lived for nearly seven years. Things got weirder. Why wouldn't they?, with Assange trapped in a physical building and a legal limbo. In rare public appearances, Assange looked rough: less his former satiny-minimalist fashion, slick mane, and lustrous confidence; more fist-shaking-old-man-in-a-robe, scraggly-beard, "get off my lawn" vibe.
Eventually the Ecuadoreans grew weary of the house guest who wouldn't leave. They called the cops, literally. In 2019, Assange was arrested. He has been in London's high-security Belmarsh Prison since. The United States has asked the UK to extradite Assange to face espionage charges, and the UK has seemed pleased to offload a lightning rod.
Is the U.S. extradition request about prosecution or persecution? As media struggle to make sense of Julian Assange—"Visionary or Villain?"—all indications are that if he lands in the United States, sending him to the stockade, if not the gallows, will be a bipartisan cause. The shift in American political attitude these intervening years toward a troubling receptivity to authoritarianism has flipped the script on WikiLeaks in the public imagination.
Some 35 law professors, including me, on Wednesday signed a letter to Attorney General Merrick Garland asking that the U.S. Department of Justice (DOJ) end its efforts to have Julian Assange extradited and that DOJ drop Espionage Act charges against him. I'll paste the text of the letter below.
Yesterday, the Freedom of the Press Foundation hosted a forum, "Jailing Journalists: The Assange Case and the Threat to Press Freedom" [update:posted Feb. 20]. The forum was geared to reach people who might not understand what's at stake and might not like Julian Assange. One does not have to like Assange nor applaud the publication of state secrets to worry about the implications of an extradition and Espionage Act prosecution for the First Amendment and the American Fourth Estate.
Echoing just that worry, U.S. Rep. Jim McGovern (D-Mass.) led off the forum. He has led lawmakers, he said, in asking the Garland DOJ to drop the charges and abandon the extradition. McGovern represents the Massachusetts Second Congressional District, which is a good chunk of the center of the commonwealth, west of Boston.
The Freedom of the Press Foundation forum revealed just how dangerous the situation has become for journalists in America, and how endangered might be some fundamental precepts of First Amendment law. One journalist commented in the forum that he has been sued by government for a prior restraint on the dissemination of lawfully obtained public records. This is basic Pentagon Papers stuff. But would the present Supreme Court uphold the sacrosanct no-prior-restraint doctrine?, forum participants asked.
When I met Jane Kirtley 30 years ago, that would have been a silly question.
Assange will have been in prison in London for five years this April. Beginning Tuesday next week, on February 20 and 21, the High Court of Justice in London will hear his case on a potentially dispositive procedural question. Previously, the British government approved extradition to the United States, and a lower court judge decided that that determination could not be appealed. So the subject of the hearing next week is to determine whether Assange may appeal the administrative disposition to the courts.
Boston Area Assange Defense
plans a rally in support of Assange on February 20 (flyer above) at the Massachusetts State House. The
group has been an active local organization advocating against
prosecution of Assange. I publicized the organization's rally and forum last year. A demonstration is planned similarly at the UK Consulate in New York City on February 20 (flyer at left).
LAW PROFS' LETTER TO U.S. AG RE ASSANGE, ESPIONAGE ACT
February 14, 2024
The Honorable Merrick B. Garland Attorney General
Dear Attorney General Merrick Garland,
The undersigned law professors strongly urge the Department of Justice to end its efforts to extradite WikiLeaks founder Julian Assange to the United States and to drop the charges against him under the Espionage Act.[FN1]
Our personal views on Assange and WikiLeaks vary, and we are not writing to defend them in the court of public opinion. But when it comes to courts of law, we are united in our concern about the constitutional implications of prosecuting Assange. As explained below, we believe the Espionage Act charges against him pose an existential threat to the First Amendment.
"[A] free press cannot be made to rely solely upon the sufferance of government to supply it with information."[FN2] Accordingly, the Supreme Court has correctly and repeatedly held that journalists are entitled to publish true and newsworthy information even if their sources obtained or released the information unlawfully.[FN3] Journalists have relied on sources who broke the law to report some of the most important stories in American history.[FN4] An application of the Espionage Act that would prohibit them from doing so would not only deprive the public of important news reporting but would run far afoul of the First Amendment.[FN5]
That is why last November, editors and publishers of The New York Times, The Guardian, and other international news outlets wrote in an open letter about the Assange case that "[o]btaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists. If that work is criminalised,our public discourse and our democracies are made significantly weaker."[FN6] Additionally, top editors at The Washington Post, Wall Street Journal, USA Today, and more have unequivocally condemned the charges against Assange as a direct threat to their own journalists’ rights.[FN7]
The Obama/Biden DOJ recognized as much in declining to prosecute Assange, reportedly due to “the New York Times problem,” i.e., the lack of a legal basis to prosecute Assange that could not also be used to prosecute the nation’s most recognizable newspaper.[FN8] That was, unfortunately, less of a worry for the Trump DOJ, but should deeply concern your office.
The current indictment against Mr. Assange contains 17 counts of alleged Espionage Act violations, all based on obtaining, receiving, possessing and publishing national defense information.[FN9] The indictment accuses Assange of "recruit[ing] sources" and "soliciting" confidential documents merely by maintaining a website indicating that it accepts such materials.
Award-winning journalists everywhere also regularly "recruit" and speak with sources, use encrypted or anonymous communications channels, receive and accept confidential information, ask questions to sources about it, and publish it. That is not a crime—it’s investigative journalism. As long as they don’t participate in their source’s illegality, their conduct is entitled to the full protection of the First Amendment.[FN10]
The fallout from prosecuting Assange could extend beyond the Espionage Act and beyond national security journalism. It could enable prosecution of routine newsgathering under any number of ambiguous laws and untested legal theories.We’ve already seen prosecutors test the outer limits of some such theories in cases against journalists.[FN11]
The Justice Department under your watch has spoken about the importance of newsgathering and ensuring the First Amendment rights of reporters are protected, even when stories involve classified information. You have also strengthened the Justice Department's internal guidelines in cases involving reporters.[FN12] We applaud these efforts. But a prosecution of Assange under the Espionage Act would undermine all these policies and open the door to future Attorneys General bringing similar felony charges against journalists.
We respectfully urge you to uphold the First Amendment and drop all Espionage Act charges against Julian Assange.
Sincerely,
Jody David Armour, Roy P. Crocker Professor of Law, USC Gould School of Law
Michael Avery, Professor Emeritus, Suffolk Law School
Emily Berman, Royce R. Till Professor of Law, University of Houston Law Center
Mark S. Brodin, Professor, Boston College Law School
Leonard L. Cavise, Professor Emeritus, DePaul College of Law
Alan K. Chen, Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law
Carol L. Chomsky, Professor, University of Minnesota Law School
Marjorie Cohn, Professor of Law Emerita, Thomas Jefferson School of Law
Evelyn Douek, Assistant Professor of Law, Stanford Law School
Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law
Richard Falk, Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University
Martha A. Field, Langdell Professor, Harvard Law School
Sally Frank, Professor of Law, Drake University School of Law
Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights, Maurice A. Deane School of Law at Hofstra University
James Goodale, Adjunct Professor of Law, Fordham University School of Law
Robert W. Gordon, Professor of Law, Emeritus, Stanford Law School
Mark A. Graber, Regents Professor, University of Maryland Carey School of Law
Jonathan Hafetz, Professor of Law, Seton Hall Law School
Heidi Kitrosser, William W. Gurley Professor of Law, Northwestern – Pritzker School of Law
Genevieve Lakier, Professor of Law and Herbert & Marjorie Fried Teaching Scholar, The University of Chicago Law School
Arthur S. Leonard, Robert F. Wagner Professor of Labor and Employment Law, Emeritus, New York Law School
Gregg Leslie, Professor of Practice; Executive Director, First Amendment Clinic, ASU Sandra Day O’Connor College of Law
Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University School of Law
Carlin Meyer, Prof. Emerita, New York Law School
Anthony O’Rourke, Joseph W. Belluck & Laura L. Aswad Professor, University at Buffalo School of Law
Richard J. Peltz-Steele, Chancellor Professor, UMass Law School
Jonathan Peters, Chair of the Department of Journalism and Affiliate Professor of Law, University of Georgia
Aziz Rana, Incoming J. Donald Monan, S.J., University Professor of Law and Government, Boston College
Leslie Rose, Professor of Law Emerita, Golden Gate University School of Law
Brad R. Roth, Professor of Political Science and Law, Wayne State University
Laura Rovner, Professor of Law & Director, Civil Rights Clinic, University of Denver Sturm College of Law
Natsu Taylor Saito, Regents’ Professor Emerita, Georgia State University College of Law
G. Alex Sinha, Associate Professor of Law, Maurice A. Deane School of Law at Hofstra University
Mateo Taussig-Rubbo, Professor; Director of J.S.D. Program, University at Buffalo School of Law
Hannibal Travis, Professor of Law, Florida International University College of Law
Sonja R. West, Brumby Distinguished Professor in First Amendment Law, University of Georgia School of Law
Bryan H. Wildenthal, Professor of Law Emeritus, Thomas Jefferson School of Law
Ellen Yaroshefsky, Howard Lichtenstein Professor of Legal Ethics, Maurice A. Deane School of Law at Hofstra University
Signatories to this letter have signed in their individual capacities. Institutions are named for identification purposes only.
1. 18 U.S.C. §§ 792-798.
2. Smith v. Daily Mail Publ'g Co.,443 U.S. 97, 104 (1979).
3. See, e.g., Bartnicki v. Vopper, 532 U.S. 514 (2001); Florida Star v. B.J.F., 491 U.S. 524, 536 (1989); Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 830 n.1, 832 (1978); Okla. Publ'g Co. v. Okla. Cnty. Dist. Ct., 430 U.S. 308 (1977).
4. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 913 (1971) (per curiam).
5. Jean v. Mass. State Police, 492 F.3d 24, 31 (1st Cir. 2007) (Bartnicki barred liability for knowingly receiving illegal recording under criminal wiretapping statute).
6. Charlie Savage, Major News Outlets Urge U.S. to Drop Its Charges Against Assange, N.Y. Times, Nov. 28, 2022.
7. Camille Fassett, Press Freedom Organizations and News Outlets Strongly Condemn New Charges Against Julian Assange, Freedom of the Press Foundation, May 24, 2019.
8. Hadas Gold, The DOJ's "New York Times" problem with Assange, Politico, Nov. 26, 2013.
9. 18 U.S.C. § 793; WikiLeaks Founder Charged in Superseding Indictment, Office of Public Affairs, U.S. Department of Justice, June 24, 2020.
10. Bartnicki, supra; Democratic Nat'l Comm. v. Russian Fed'n, 392 F. Supp. 3d 410, 436 (S.D.N.Y. 2019) ("Journalists are allowed to request documents that have been stolen and to publish those documents.").
11. Steven Lee Myers & Benjamin Mullin, Raid of Small Kansas Newspaper Raises Free Press Concerns, N.Y. Times, Aug. 13, 2023.
12. Charlie Savage, Garland Formally Bars Justice Dept. from Seizing Reporters' Records, N.Y. Times, Oct. 26, 2022.
Attorney Robert A. Sherman, U.S. ambassador to Portugal from 2014 to 2017, spoke to students, staff, and faculty at the University of Massachusetts Law School today about his experience as a lawyer and diplomat.
Sherman's work experience spans criminal and civil practice, as well as politics and diplomacy. In a tort vein, from 2002 to 2004, Sherman was lead counsel for plaintiffs in sex abuse claims against the Roman Catholic Archdiocese of Boston. Those were among the cases investigated by the Boston Globe"Spotlight" team, whose work was dramatized in the 2015 feature film, Spotlight.
Early in the wave of sex-abuse litigation against the church, Sherman said, plaintiff attorneys faced daunting hurdles, such as statutes of limitations and charitable immunity for the church in state law. Another problem was simply identifying victims. Many victims self-blamed, and a powerful stigma attached to the first persons who came forward.
As is problematically common in American tort litigation, secrecy in negotiated dispute resolution and non-disclosure agreements in settlements prevented the public from knowing who the perpetrators were and from understanding the scope of the wrongs. The same conditions impeded the Spotlight investigation.
Sherman said that he's spoken publicly only recently about his connection to Globe editor Walter V. Robinson and the Spotlight team. Because of his work on the cases, Sherman said, he knew more than the public, and more than the Spotlight team, about the magnitude of the problem. And he knew who the perpetrators were. Yet bound by attorney-client confidentiality, Sherman said, he could not speak freely. He wrestled with his ethical responsibilities, he said.
Occasionally, Sherman met Robinson on a park bench—like in a spy thriller. Robinson wanted names. Sherman couldn't give them. But Robinson might say, for example, "Our sources tell us to look into Father Shanley." Sherman would respond, "I've heard of Father Shanley." That was all Robinson needed to hear to know that his lead was good.
Sherman and his law firm resolved 385 of 525 victim claims against the church in arbitration, he said.
Law school and working as an attorney well prepared Sherman to be an ambassador, he said, because the job of ambassador boils down to resolving conflicts, if between nations rather than between people.
Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mailwrote about her in 2022.
A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.
Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.
Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.
Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.
I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.
Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."
.jpg)
