First Amendment predictions for 2013 include disputes over leaks

Dec 19, 2012


Inside the First Amendment

By Gene Policinski
First Amendment Center
Courts have determined that fortunetelling is protected as free speech, so let’s freely indulge in some First Amendment-related predictions for 2013:

Given that there is no major lineup of First Amendment cases this term in the U.S. Supreme Court, the main focus here will be legislative.

On the national-security front, expect Congress and the nation to visit again the free-speech and free-press issues surrounding news sources and the leaking of secrets and classified documents. The major prompt: Army Pfc. Bradley Manning’s military trial on charges of aiding the enemy for his massive “data dump” to WikiLeaks. The trial begins in mid-March unless it’s preempted by a guilty plea on lesser charges.

Either way, such leaks will be back in the headlines. One immediate impact: It will be harder for advocates of a federal “shield law” to gain congressional approval to extend into federal courts a protection for the confidentiality of news sources, which now exists in most states. Another unresolved issue is who gets protection as a “journalist” in a way that excludes non-press outlets and people such as WikiLeaks and its founder, Julian Assange.

The Senate is expected to take action next year on the Intelligence Authorization Bill for 2013, approved months ago in the House. Sen. Ron Wyden, D-Ore., has a “hold” on the bill pending resolution of questions over requiring the executive branch to notify Congress whenever classified information is disclosed. Freedom-of-information groups have raised concerns about the bill’s provisions to give agency heads extraordinary authority to penalize employees who leak information, and also about proposed new limitations on who may speak to the public about classified matters.

Whistleblowers – sources who leak information about perceived government abuses or wrongdoing – received additional federal protections under a new law signed in November by President Barack Obama. But there remains the question of whether his Justice Department’s vigorous investigation and prosecution of staffers thought to have leaked information will continue in Obama’s second term.

A range of FOI experts expect the administration in 2013 to focus on improving the timeliness and content of responses to Freedom of Information Act requests.

Open-government advocates initially gave Obama positive marks for directing agencies to better respond to public inquiries. Many say access to government information has improved in the last four years. However, a report Dec. 18 by Bloomberg News showed Cabinet-level departments were the worst at responding to its FOI request for travel-expense data, and that across the federal government there was increased use of exemptions to block information requests. Earlier this year, a report by The Hill showed wide variance among agencies in disclosing the FOI requests they had received.

There is little doubt that the new Congress will revisit campaign-finance issues after record spending in the 2012 elections fueled by the new ability of corporations, unions and others to spend in direct support or opposition to federal candidates. The record levels were made possible by the Supreme Court’s controversial 2010 Citizens United decision to strike down long-standing bans on such spending.

Though record amounts were spent, early assessments are that the estimated $6 billion in campaign spending was not as effective – or damaging, depending on your point of view – as critics had predicted. However, supporters of restoring limits or of public funding pledged soon after the Nov. 5 presidential election to push for legislative counters to the Court’s decision.

The massacre in Newtown, Conn., has provoked talk-show and lawmaker criticism of violence in movies, on television and in video games. The discussions may breathe new life into congressional attempts to circumvent a 2011 Supreme Court decision that such video games have First Amendment free-speech protection.

One constant for 2013: The controversial Westboro Baptist Church members will continue their self-aggrandizing but legal protests in the wake of tragedies such as Newtown – and virtually everyone else will continue to be disgusted by such tactics.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: E-mail: