First Amendment Law Prof Blog

John Dean on White House Decision to Withhold Library Documents

Yesterday's post provided an update on litigation involving 500 e-mails gone missing from the White House.  Today, former Nixon White House attorney John Dean's Findlaw column takes the Administration to task for withholding official documents from the future presidential library.

In 2001, President Bush issued Executive Order 13233 which purports to interpret the Presidential Records Act of 1978. Here’s how Dean described that measure in a previous article:

The Order granted all former presidents, as well as any persons selected by them, an unprecedented authority to invoke executive privilege to block release of their records. In addition, it granted the power to invoke executive privilege to present and former vice-presidents as well. Moreover, it shifts the burden to the requester to establish why he or she seeks the presidential records. (In contrast, the 1978 law properly put the burden on the former president who seeks to withhold them.) And Bush's Order empowers a current president to block release of a former president's records even when the former president wishes to release them. Finally, it makes the Department of Justice available to represent, in litigation, any incumbent or former president seeking to withhold information. (emphasis in original).

This week Dean notes that future Presidents will have the authority to restore the law to its previous form through a new Executive Order, but doubts whether members of the Bush Administration would comply in good faith:

It seems that those associated with the presidential libraries share my belief that Cheney plans to either destroy all the papers of his that he does not want the public to see, or to walk out of the White House with his papers under his control indefinitely, and that Bush will follow his lead. Not surprisingly, this is deeply troubling to these professionals, for they know it is contrary to both the spirit and letter of the laws relating to presidential papers.

In 2001, Public Citizen, The Reporters Committee for Freedom of the Press, and a coalition of historians sued to enjoin EO 13233 in order to compel disclosure of Reagan presidential records.  In early 2007, Senate Republicans killed a House approved bill that would have preserved presidential records. With Democrats now in the majority, Dean sees an opportunity to encourage disclosure through Democratic-led resolutions or threats to filibuster proposals to fund the library when it is turned over to the National Archives and Records Administration.

-Kathleen A. Bergin

Judge Halts Illinois Moment of Silence Law

As reported in USA Today, US District Judge Robert Gettleman temporarily enjoined an Illinois school district from enforcing a mandatory moment of silence law in its public schools pending the outcome of a lawsuit filed by the father of a public school student.  As poted previously on this site, the Illinois law took effect in October when the legislature overrode the governor's veto.  According to American's United for Separation of Church and State, more than half of the states allow voluntary or mandatory moments of silence.   Daniel Conkle, a law professor at Indiana University, spoke with USA Today, stating that federal courts have generally ruled that "moment of silence statutes are permissible as long as they are not clearly tilted in the direction of actually encouraging students to use this moment for prayer." . . .

-Kathleen A. Bergin

Australia: Indepenent Audit Evaluates State of Free Speech

A coalition of media interests released a Report of the Independent Audit into the State of Free Speech in Australia.  The audit disclosed 500 pieces of legislation and 1000 media suppression orders that make the case for improved government transparency by reforming secrecy provisions, anti-terrorism legislation, whistle-blower protection, and administrative burdens on access to information.  The Age and Sydney Morning Herald have more.

-Kathleen A. Bergin

White House Ordered to Preserve E-mails

A federal judge this week ordered the White House to preserve copies of all e-mails in response to lawsuits brought by the National Security Archives and Citizens for Responsibility and Ethics in Washington. The organizations seek an explanation for why the White House cannot account for 5 million e-mails that, if destroyed, may violate the Federal Records Act. The issue of the missing e-mails arose in connection with the probe of administration officials who leaked the identity of CIA operative Valerie Plame after her husband Joe Wilson published a 2003 New York Times op-ed claiming that the Bush Administration manipulated intelligence findings to justify an invasion of Iraq.

-Kathleen A. Bergin

SCT Denies Cert to Poet Amiri Baraka

The Supreme Court on Tuesday denied cert to one-time New Jersey poet laureate Amiri Baraka who brought a First Amendment claim against the state's decision to eliminate that position after he read "Somebody Blew Up America" at a poetry festival in 2002.  The controversial six page poem about the 9/11 terror attacks generated controversy from critics who said the poem was anti-Semitic, a claim Baraka denies.  NJ law prevented the firing of a designated poet laureate so former Governor James McGreevy signed a bill to eliminate the post.  He defended that decision to the NJ Star-Ledger stating, "The difficulty with a state position of poet laureate was that, by implication, the state was giving approval or support to the ideas of the author. ... The state (did not) want to have the responsibility of endorsing the words of the poet laureate."  The denial of cert leaves in place the Third Circuit's ruling that state officials were immune from suit.  AP has more.

-Kathleen A. Bergin

Iraq: Report on Freedom of Expression

Article 19, an independent human rights group, in conjunction with the UN Development Project, released a report entitled Free Speech in Iraq: Recent Developments.  The report explains how the new Constitution adopted in 2005 protects freedom of expression and the independence of the nation's broadcast regulatory body, but notes that a number of criminal laws established under Saddam Hussein and still in force threaten the activities of reporters, journalists and government protesters.

An excerpt from the Introduction reads:   

With the ratification of the new Constitution in October 2005, a framework of protection of fundamental human rights was established, including a basic guarantee of the right of freedom of expression and an explicit guarantee of structural independence for a national broadcast regulatory body. These are positive developments which provide guidance in the ongoing democratisation process in  Iraq, for which the development of a free and independent media is indispensable.

But there is little doubt that the very poor security situation has continued to pose a major threat to freedom of expression, and the media in particular, in Iraq. The dangers faced by journalists have been well-documented and there is little chance that a free, independent and pluralistic media can develop and survive in the current climate. Additionally, we are concerned that quite apart from the security situation, the Iraqi government has done very little to improve the very restrictive regulatory framework for freedom of expression in Iraq. Although, as noted, the 2005 Constitution contains a number of relatively progressive provisions that promote freedom of expression, there has been no legislative follow-up to make these constitutional guarantees an everyday reality.

- Kathleen A. Bergin

Westboro Baptist Appeals to US Supreme Court

In an unusual move, the Westboro Baptist Church filed an appeal with the U.S. Supreme Court challenging the $11 million funeral protest verdict rendered against it, along with criminal charges pending against church leader Shirley Phelps-Roper under Nebraska state law for flag mutilation and child neglect related to another funeral protest in June.  The Baltimore Sun reports that the church also plans to challenge the jury verdict in the court of appeals and fight the criminal charges in state court, but "wanted to give the U.S. Supreme Court a chance to address the compelling constitutional questions these cases raise." 

Under these circumstances, it is doubtful that the Court will hear the case.  The First Amendment verdict has has yet to be reviewed by the Fourth Circuit, and the criminal case has not yet gone to trial.  Via the AP, Craig Trebilcock, an attorney for family that won the funeral protest verdict, had these biting words his opponents:  “Whoever is acting as counsel for Westboro on these cases would be well advised to purchase and read a copy of the federal rules of civil and appellate procedure before wasting the Supreme Court’s time on improper filings.”  

- Kathleen A. Bergin

Veterans Day Protest Against Boston Parade Exclusion Recalls "Hurley" Ruling

The Boston Globe reports that eighteen members of Veterans for Peace were arrested yesterday while protesting their exclusion from an American Legion sponsored Veterans Day Parade. The group held anti-war signs in front of City Hall during a post-parade ceremony to honor veterans. Some protesters wore gags to symbolize their opposition to parade rules that allowed them to march, but not carry signs opposing the Iraq war.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Supreme Court affirmed that private parade organizers have a First Amendment right to exclude groups whose message conflicts with their own. The 1995 decision arose when the South Boston Allied Veterans War Council refused to allow GLIB to march in its annual St. Patrick’s Day parade. The War Council has also excluded Veterans for Peace from its St. Patrick’s Day parade in previous years.

-Kathleen A. Bergin

Wal-Mart Asks NC Court to Seal Filings

Wal-Mart has asked a North Carolina judge to block public access to future court filings after the Wall Street Journal last week made court documents available on-line.  Wal-Mart is defending a suit brought by the state in response to a complicated tax cutting scheme designed by the mega-retailer's auditing firm Earnst & Young.

The First Amendment creates a presumption favoring open trials, including public access to court filings, which means that filings will be sealed only for compelling reasons under especially narrow terms.  Wal-Mart's attorney argues that "The posting of such business correspondence on public websites causes unreasonable and undue annoyance and oppression of a party that is attempting to litigate a serious dispute with a public agency. The Chief Justice of North Carolina has determined this to be an exceptional case . . . It is important that this case go to decision and not be unfairly influenced by outside forces.”

That previously filed documents have been publicly available for months bodes against Wal-Mart's claim.  As Attorney Martin Garbus explained to the WSJ: “Had they made this argument on day one, that would be one thing, but it’s not day one anymore. If the sky didn’t fall the first time, why would it fall now?”

-Kathleen A. Bergin

"Jews for Jesus" Suit Brings "False Light" Claim to FLA Supreme Court

The Florida Supreme Court will decide whether to recognize a tort for "false light invasion of privacy" in Rapp v. Jews For Jesus, a case that arose in 2002 when Bruce Rapp described his step-mother of Jewish faith in an on-line newsletter as a convert to the groups beliefs who asked forgiveness for her sins and participated in a Christian prayer.  A state appeals court affirmed the dismissal of Edith Rapp's defamation claim, but asked the state Supreme Court whether to recognize a false light claim.  Oral argument is scheduled for March 6, 2008.

The tort of false light allows recovery for a broad category of statements that are false, but not necessarily defamatory.  The Restatement (Second) of Torts establishes liability when the defendant publicly places another in a "highly offensive" false light, and knows or recklessly disregards the falsity of the matter. 

Liberty Counsel, the same organization involved in the "Friend or Foe of Christmas" campaign, is lead counsel for the defendant.  Their supporting amici include The New York Times Company, Orlando Sentinel, Sun Sentinel, Florida Press Association, ABC, Inc., ESPN, Inc., Scripps, Association of American Publishers, and Cox Enterprises. 

Briefs and other court documents are available from the FLA Supreme Court website.

-Kathleen A. Bergin

PBS To Air "Intelligent Design" Documentary

This Tuesday, Nov. 13, NOVA will air a documentary on Kitzmiller v. Dover, the first case in the nation to challenge teaching of "intelligent design."  In September 2005, US District Judge John E. Jones, issued the 139 page opinion in which he described intelligent design as a religious view, not a scientific theory, that gave rise to an Establishment Clause violation when taught in public schools.    

The ACLU of PA provides access to trial documents, including exhibits, transcripts and legal filings.

A website promoting the documentary provides access to material appropriate for use in a law school class, while a related Evolution site provides resources and lesson plans more appropriate for secondary school teachers.

-Kathleen A. Bergin

Turkey: EU Progress Report Notes Free Speech Constraints

Restraints on freedom of expression continue to concern EU officials, notes a 2007 progress report on Turkey’s membership bid. While Turkish media provides "open debate" on some sensitive issues, prosecutions for non-violent expression, including those under Article 301's prohibition on insulting Turkishness, continue to cause "serious concern."  Such prosecutions reportedly doubled between 2005 and 2006, and continue to rise in 2007. The political climate has created occurrences of "self-censorship" among journalists and academics, the report says, resulting in the decision by one notable weekly to cease publication in 2007 after police raided its offices.  An internal military memo purports to deny opposition journalists access to military receptions and briefings.

President Abdullah Gul and Economy Minister Mehmet Simsek both mentioned Article 301 in their response to the report.  Simsek, who described the report as "fair, constructive and balanced," said Turkey is "committed to addressing" the need for reform.  President Gul said that Article 301 "damages Turkey's image.  Everybody (in foreign countries) thinks there is a ban on freedom of expression and thought. This is a big injustice against Turkey."

Prior posts relating to Article 301 can be accessed here and here.

-Kathleen A. Bergin

Is the Exclusion of Muslim Scholar Tariq Ramadan A Violation of the First Amendment?

Federal District Judge Paul Crotty is currently considering a challenge to the denial of a visa to Oxford University Research fellow Tariq Ramadan.  Ramadan, an Islamic ethics scholar, had received an offer to teach at the University of Notre Dame but was denied a visa to enter the country.  This denial was originally thought to be justified by the terms of the Patriot Act creating authority for the denial of entry to the country if the visa applicant was a person known to "endorse or espouse terrorist activity".  In 2006 the ACLU had filed suit against Homeland Security Chief Chertoff and Secretary of State Rice challenging the relevant Patriot Act provision as a violation of the First Amendment. The suit was filed on behalf of Ramadan as well as the American Academy of Religion, the American Association of University Professors and the PEN American Center. A copy of the complaint and other case documents are available from the ACLU website.  As reported in the New York TImes,  at the hearing held in the Southern District of New York late last month, an Assistant U.S. Attorney told the court that Ramadan was being denied an entrance visa because the scholar had contributed to charities that have been linked by U.S. officials to the support of terrorism, not due to the application of the "endorse or espouse" provision.   

After the latest court hearing, The Christian Monitor published a brief essay by Tariq Ramadan entitled "The U.S. Blacklisted Me. Let's Talk."  A new ACLU publication, "The Excluded: Ideological Exclusion and the War on Ideas", presents the organization's critique of the use of the Patriot Act to keep out foreign scholars, artists, and activists on the basis of what the ACLU asserts are simply the expression of views with which the Bush administration disagrees, an approach which denies the American public access to vital infromation and which therefore cannot be reconciled with FIrst Amendment principles.         

JFB      

Military Bases and the Sale of Sexually Explicit Material

Earlier this month the American Family Association sent out an Action Alert to their membership asking recipients to contact members of Congress and urge them to press for more vigorous enforcement of the ban on the sale of sexually explicit materials at military exchanges.  The statute banning such sales, the Military Honor and Decency Act, 10 U.S.C. 2489, was signed into law by President Clinton in 1996. The ban was challenged by a magazine sellers and individual service members. The Ninth Circuit ruled that the law was constitutional in PMG Intern. Div. L.L.C. v. Rumsfeld, 303 F.3d 1163 (9th Cir. 2002). The Second Circuit had previously rejected a constitutional challenge to the statute in General Media Communications, Inc. v. Cohen, 131 F. 3d 273 (2d Cir. 1997).  Drawing on precedent such as Greer v. Spock , which held that a military base is a non-public forum in which the government is given significant latitude to regulate expression in order to advance institutional objectives, the reviewing courts found that the base sale restriction did not offend the First Amendment and noted that there were ample alternative outlets at which military personnel could obtain such material.

USA Today reports that a number of sexually oriented publications, such as Celebrity Skin, Penthouse, Playboy, and a variety of Playboy specialty publications, are sold on military bases today. Responding to a USA Today request for information on the controversy, a Department of Defense official defended the availablility of at least some of the material identified by the AFA and stated that the Pentagon's Resale Activities Board of Review had determined that "based solely on the totality of each magazine's content, they were not sexually explicit."  The statute defines "sexually explicit" as a film or publication "the dominant theme of which depicts or describes nudity" or sexual activities "in a lascivious way."  Under the DoD application of this standard, if a significant portion of the advertising and other content in a magazine was not sexually explicit, the publication could be sold on base.

JFB