Scoring First Amendment freedoms: One step forward, two back and a draw

First Five by the Freedom Forum Institute

Aug 13, 2020


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For First Amendment freedoms in recent weeks, it has been one step forward, two steps back and at best a draw — and we should be praising the progress and mad as hell about the setbacks.

The ink was not yet dry on U.S. District Court Judge Michael Simon’s July 23 temporary restraining order in Portland, Oregon, protecting the free press covering demonstrations when in Seattle, a state judge told five local news operations to turn over to police unpublished news photos and video.

Simon’s temporary restraining order banned federal officers deployed in Portland from targeting journalists (and legal observers) and excluded reporters from police orders to demonstrators to disperse.

On that same day, King County Superior Court Judge Nelson Lee in Seattle ordered reporters there to turn over unpublished materials, citing a “compelling public interest” in searching for several stolen weapons. Lee’s order effectively would turn journalists at those five outlets into unwilling police investigators and sources.

Such a transformation harms the First Amendment’s free press protection by making a shamble of reporters’ real-time ability to fully gather the news on behalf of the public and to serve as a public witness to the actions of police. Not incidentally, in violent situations it may well paint a target on the backs of reporters, photographers and television video crews if they are seen by some as just another extension of law enforcement.

No word yet if those news operations targeted by Lee’s order will appeal — but yet another danger in allowing it to stand unchallenged is that it may embolden other jurists to chip away at the First Amendment’s free press shield, as if there is no “compelling public interest” in protecting the watchdogs on government from being turned into government lapdogs.

Just a few days later, we learned from ProPublica that at least a dozen protesters arrested in recent weeks were released from jail only if they agreed not to join demonstrations — some within city or state limits, and anywhere for others — while they await trials on federal misdemeanor charges.

The ProPublica report noted that many of those arrested had been jailed for more than 10 days before being presented with the option of “voluntarily” signing away their First Amendment right to assembly. Critics contend the requirement violates the First Amendment in any number of ways, including not limiting the ban to a specific place (such as the federal courthouse, which has been the scene of several violent incidents) or for failing to specify a limited period of time.

And to cap it all, we now know via news reports, beginning with The Washington Post, that the Department of Homeland Security (DHS) had been covertly compiling intelligence reports on journalists reporting on the protests in Portland and had intercepted some internet communications between demonstrators.

Late last week, DHS announced that as a result of the reports, it has reassigned Brian Murphy, its top intelligence official. Murphy had previously denied (to Congress) that his office had access to protesters' devices and messages, according to the Post.

“In no way does the acting secretary (Chad Wolf) condone this practice and he has immediately ordered an inquiry," a department spokesman said Friday in a statement. “The acting secretary is committed to ensuring that all DHS personnel uphold the principles of professionalism, impartiality and respect for civil rights and civil liberties, particularly as it relates to the exercise of First Amendment rights."

Given DHS’ announced steps, the DHS flap is neither a win nor loss, but a draw if an isolated overreach by one official, and not a covert and wider department practice — which, by the way, will be the focus of a new U.S. House committee investigation.

Government faces the uphill burden of proving that any limit or intrusion on our freedoms is justified by facts, not mere suspicion or political gain, and any such limit must be the narrowest possible intrusion on those rights, for the shortest period of time.

Our core freedoms ought not be viewed as just one option to be voided to help police, nor as government favors to be placed on a negotiating table, particularly when citizens are compelled to choose to surrender them to obtain some beneficial government action, such as pre-trial release.

Regardless of how any of us view the purpose and impact of ongoing demonstrations by various groups nationwide, First Amendment rights ought to be a non-partisan rallying point in defense of those freedoms.

And one out of three and a draw should not be a satisfying constitutional outcome for any of us.