Back into the FIRE: Hasen’s response to FIRE and Rohde: Don’t read the press clause out of the Constitution — First Amendment News 420

It all started when I noticed an SSRN post of a forthcoming essay by Richard Hasen. In it, the UCLA School of Law professor took exception to some of what was offered up by FIRE in an amicus brief filed in the Ninth Circuit in TGP Communications v. Sellers. FIRE and Stephen Rohde thereafter weighed in with their responses to Hasen. 

Now, professor Hasen returns to the analytical scene with his rejoinder, which is set out below. 

The cerebral FIRE is crackling, which is just how I like it.

Richard Hasen’s response to FIRE

Thanks so much to Ron Collins, first for his work on the indispensable First Amendment News, and particularly for featuring my forthcoming book chapter on FAN, for publishing two responses, one from FIRE attorneys and one from Stephen Rohde, and for giving me this opportunity to reply.

My Core Argument

In “From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection,” I examine how government entities determine who is a journalist to allocate resources under conditions of scarcity (such as room in the White House briefing room, which is a finite space) and to assure that the press can conduct their functions without undue government regulation and interference (such as by implementing media shield laws). 

Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, I describe the most common tests government entities employ to identify journalists and compare them to one another. Although the definitions and tests differ in their particulars — and some rules simply say they apply to “journalists,” “news media,” or similar such terms without further definition — most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news.

I then describe the relatively rare, reported litigation around these journalist-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and non-professional journalists, and some has dealt with the exclusion of journalists for permissible reasons, such as disruptive behavior. But not every issue is easy. Using the example of litigation over Maricopa County, Arizona’s decision to exclude a faux journalist for The Gateway Pundit from an area where ballots were being tabulated following the 2022 elections, I focus particularly on the line between unconstitutional viewpoint discrimination and permissible extension of the press exemption only to those who engage in legitimate professional journalism.

I then make four normative recommendations about the tests government entities should use to define journalists:

• First, government entities should have explicit and meaningful standards for press exceptionalism. Entities should produce a set of written rules that are easily accessible and fair. 
• Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary.
• Third, the applicability of press exceptionalism should not turn on the type of technology, such as the use of digital technology.
• Fourth, and most controversially, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination. The key here is to exclude those who violate basic journalism norms by having no track record of consistently gathering, reporting, and disseminating truthful information or with a track record of consistently reporting and disseminating empirically verifiable false claims as true.

FIRE’s and Rohde’s Critiques

Neither FIRE nor Rohde address the problem, “How do you identify journalists when there is finite space or some other scarcity and decide whether to give special treatment like a media shield?” or most of my proposed solutions — such as limiting press protections to professional journalists rather than dabblers, and making the definition of “press” turn on the regularity of engaging in journalistic activities rather than on the type of technology (like a political blog) through which reporting is conveyed.

It may be that FIRE and Rohde believe all the rules that identify professional journalists, including the rules for United States Supreme Court press access that I detail in my chapter, violate the First Amendment. If so, such a ruling would not only eviscerate protection for the press contained in the First Amendment. It would also create Bedlam. Are we going to kick out reporters from The New York Times and Fox News from the White House briefing room and replace them with non-professionals who just have a personal interest in being there? Will this be done by lottery? This system would do a great disservice to the nation and to the ability of the press to serve its educational function — and to serve as a meaningful check on the government.

Are we to give everyone a press shield, essentially ending the pursuit of truth in courts? Or are we to eliminate press protections for professional journalists? Neither FIRE nor Rohde say.

Instead, they focus on only one aspect of my proposal — something which has historically not been a problem, but in the cheap speech era is increasingly becoming one: how to handle people who are professionals in the sense that they write content for websites, but they do not follow journalistic norms. Instead, they are vectors for spreading disinformation, including disinformation about elections being stolen that undermines voter confidence in the democratic process.

The New Problem of Faux Journalists

What do we do about these people, who also may fill the press room under conditions of certainty, and who in the era of cheap speech are going to proliferate even more, literally crowding out legitimate journalists?

In the final part of my paper, I set forth a test that focuses on whether someone who purports to be a journalist regularly follows journalistic norms. If someone regularly misreports false statements as true or true statements as false, they are not a legitimate journalist.

FIRE and Rohde think that this test puts too much power in the hands of the government, smacks of censorship, and will be abused. Rohde, in particular, decries a requirement that journalists check their facts, but could there be a more central requirement to being a journalist? I recognize that there are free speech concerns, but the way to deal with these is to limit the focus to empirically verifiable facts, to resolve close cases in favor of journalists, and to have judicial review.

Would such a system work? Well, we don’t have to guess, because we know it does. In the U.S. Senate press gallery, for example, a committee of journalists — essentially deputized by Senate leadership — determines if someone applying for press credentials is a bona fide journalist of good repute in the profession. This has been the practice for decades and has worked well so far if judged by the very small number of reported court cases and public controversies. As the Seventh Circuit remarked in upholding a similar standard applied by the Wisconsin governor’s press office:

The criteria listed . . . are reasonably related to the viewpoint-neutral goal of increasing journalistic integrity by favoring media that avoid real or perceived conflicts of interest or entanglement with special interest groups, or those that engage in advocacy or lobbying. Similar standards are also used by other governmental bodies such as the United States Congress.

In the end, the positions of FIRE and Rohde smack of nihilism, denying there is truth. If their position prevails, the central role of journalism in our democracy would be seriously at risk.

Yesterday in the Supreme Court: The Jan. 6 rioters’ case

• John Fritze, Marshall Cohen, Tierney Sneed, and Hannah Rabinowitz, “Takeaways from the Supreme Court’s arguments over obstruction charge used against January 6 rioters,” CNN (April 16)

The Supreme Court’s conservative majority indicated Tuesday that it may toss out a charge prosecutors have lodged against hundreds of people who took part in the January 6, 2021, riot on the US Capitol, a decision that could force the Justice Department to reopen some of those cases.

During over 90 minutes of arguments, most justices signaled concern with how the Justice Department is using the law enacted by Congress more than two decades ago in response to the Enron accounting scandal. Critics claimed the felony charge, which carries a prison sentence of up to 20 years, was intended to prevent evidence tampering – not an insurrection in support of a president who lost reelection.

[ . . . ]

Traumatic day boiled down to a technical argument

The appeal was brought by a former Pennsylvania police officer, Joseph Fischer, who was charged with multiple crimes for pushing his way into the Capitol after attending Trump’s rally outside the White House on January 6. Fischer’s attorney told the justices that prosecutors overstepped by charging his client with what critics previously framed as an anti-shredding law.

Mostly absent from oral arguments Tuesday was recognition of the traumatic and deadly turn of events that took place just across the street from the Supreme Court three years ago after Trump ginned up a crowd with false claims of fraud and encouraged them to march on the Capitol and “fight like hell.”

Instead, the discussion turned largely on a technical and legalistic debate about the meaning of the words in the law – in particular the word “otherwise.”

[ . . . ]

Conservatives ask about left-wing protests

There was a heavy dose of “whataboutism” from the conservative justices, who repeatedly brought up left-wing protests while pressing both sides about exactly which conduct they believed would – and wouldn’t – be covered by the felony obstruction law.

Justice Neil Gorsuch posed several hypotheticals to Prelogar, asking if prosecutors could use the law to charge someone who participated in a sit-in that disrupted a trial “at a federal courthouse” or who was caught “pulling a fire alarm before a vote” in Congress.

[ . . . ]

Liberals appear united against rioter on textualist grounds

The Supreme Court’s three liberals appeared to be lined up in favor of the Justice Department’s position that the federal obstruction law is broad enough to include the rioters’ conduct on January 6.

The law, Justice Elena Kagan said, could have been written by Congress to limit its prohibition to evidence tampering. But, she stressed, “it doesn’t do that.”

Kagan and Justices Sonia Sotomayor and Ketanji Brown Jackson pressed Fischer’s attorney, Jeffrey Green, on the plain text of the law – embracing a conservative notion of “textualism,” or reading the law for its plain meaning without considering legislative history and other factors.

Trump looms in the background

Though Trump is not a party in the case, the appeal indirectly thrust him onto the Supreme Court’s docket for the third time this election year. In March, the justices unanimously ruled that the former president should appear on the ballot in Colorado despite claims he violated the 14th Amendment’s “insurrectionist ban” because of his actions on January 6.

Special counsel Jack Smith has charged Trump with the same obstruction crime prosecutors filed against Fischer and more than 350 others involved in the attack. The former president and presumptive GOP nominee would almost certainly use a win for Fischer to try to further undermine the Justice Department’s prosecution of the January 6 defendants.

How much Fischer’s case would spill over to Trump’s is open for debate. 

[ . . . ]

Clarence Thomas was back in court

Justice Clarence Thomas was absent from oral arguments on Monday, with the court refusing to explain his absence. He was back on Tuesday for a case that critics say he shouldn’t be involved in at all.

The Fischer case has prompted some liberal critics of the court to demand that Thomas recuse himself. That’s because Thomas’ wife, Ginni Thomas, attended Trump’s incendiary rally on January 6 and plotted with Trump allies on ways to keep him in power after he lost the election.

Thomas has ignored the requests to recuse and posed a number of questions that challenged both sides in the case. 

SCOTUS declines to hear liability of protesters in Black Lives Matter case

• Amy Howe, “Court declines to intervene in lawsuit against Black Lives Matter organizer,” SCOTUSblog (April 15)

The Supreme Court on Monday declined to intervene in a lawsuit filed by a Louisiana police officer against a leader of the Black Lives Matter movement who organized a protest at which the police officer was seriously injured. The court’s denial of review in Mckesson v. Doe was part of a list of orders issued from the justices’ private conference last week.

[ . . . ]

At issue in Mckesson was whether DeRay Mckesson can be held responsible for the officer’s injuries when he did not directly harm the officer himself but instead organized the demonstration and, the officer said, “knew or should have known” that violence would result.

The case is one with which the justices were already familiar. In 2019, the U.S. Court of Appeals for the 5th Circuit allowed the officer’s lawsuit to go forward. Mckesson then appealed to the Supreme Court, where he argued that the lawsuit against him was barred by the First Amendment and the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware Co., which limited the NAACP’s liability for a nonviolent protest that it organized.

In November 2020, the court sent the case back to the 5th Circuit with instructions to seek guidance from the Louisiana Supreme Court on whether state law would in fact allow Mckesson to be held liable.

Separate Statement by Justice Sotomayor

[ . . . ]

Because this Court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson’s claim. Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do. I expect them to give full and fair consideration to arguments regarding Counterman’s impact in any future proceedings in this case.

Related

• Ian Millhiser, “The Supreme Court effectively abolishes the right to mass protest in three US states,” Vox (April 15)

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

• Matt Ford, “Don’t Panic About the Supreme Court’s Right to Protest Ruling—Yet,” The New Republic (April 17)

Public libraries: ‘Book challenges and bans have soared to the highest levels in decades.’

• Hillel Italie and Kimberlee Krues, “Librarians fear new penalties, even prison, as activists challenge books,” Free Speech Center (April 10)

When an illustrated edition of Margaret Atwood’s The Handmaid’s Tale was released in 2019, educators in Clayton, Mo., needed little debate before deciding to keep copies in high school libraries. The book is widely regarded as a classic work of dystopian literature about the oppression of women, and a graphic novel would help it reach teens who struggle with words alone.

But after Missouri legislators passed a law in 2022 subjecting librarians to fines and possible imprisonment for allowing sexually explicit materials on bookshelves, the suburban St. Louis district reconsidered the new Atwood edition, and withdrew it.

“There’s a depiction of a rape scene, a handmaid being forced into a sexual act,” says Tom Bober, Clayton district’s library coordinator and president of the Missouri Association of School Librarians. “It’s literally one panel of the graphic novel, but we felt it was in violation of the law in Missouri.”

Across the country, book challenges and bans have soared to the highest levels in decades. Public and school-based libraries have been inundated with complaints from community members and conservative organizations such as Moms for Liberty. Increasingly, lawmakers are considering new punishments — crippling lawsuits, hefty fines, and even imprisonment — for distributing books some regard as inappropriate.

George Freeman on Trump suit against George Stephanopoulos in First Amendment Watch

• Susanna Granieri, “Attorney George Freeman on Trump’s Defamation Lawsuit Against ABC, Stephanopoulos,” First Amendment Watch (April 16)

In his latest defamation lawsuit against the press, Donald Trump sued ABC, ABC News and host George Stephanopoulos in March, claiming Stephanopoulos uttered defamatory statements in an interview discussing the former president’s liability in the E. Jean Carroll civil rape and defamation trials.

In a March 10 interview with South Carolina Republican Rep. Nancy Mace, Stephanopoulos questioned Mace’s endorsement of Trump despite two juries awarding Carroll a total of $88.3 million in damages after finding him liable for sexual abuse and defamation.

During the interview, Stephanopoulos repeatedly stated that Trump had been found liable for “rape.” When Mace disputed that characterization, saying that he had specifically been found liable for “sexual abuse,” Stephanopoulos doubled-down on the claim, referencing an August 2023 court filing in which the federal judge who oversaw both trials wrote that the Trump did “rape” Carroll “as that term commonly is used and understood.”

“In fact, it has been shown to be rape,” Stephanopoulos said. “The judge affirmed that it was, in fact, rape. Donald Trump was found to have committed rape. That’s just a fact.”

Trump’s lawsuit argues that Stephanpolous’ statements were “false, intentional, malicious and designed to cause harm.” ABC News declined to comment.

The lawsuit accuses Stephanopoulos of acting with actual malice, a standard established by the 1964 Supreme Court decision in New York Times v. Sullivan, in which the court held that public officials and public figures can’t prevail in a defamation suit without proving that a statement was false and that, in addition, it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” In subsequent cases, the court defined reckless disregard as entertaining serious doubts as to truth or having a high degree of awareness of probable falsity.

First Amendment Watch spoke with George Freeman, executive director of the Media Law Resource Center and former assistant general counsel of The New York Times, about the lawsuit. Freeman noted how this suit is different from others filed by the former president against the press and discussed the legal hurdles posed by Trump’s reputation of making derogatory remarks about women.

Forthcoming scholarly article on disinformation in marketplace of ideas

• Enrique Armijo, “Counter-lies: Disinformation and the Marketplace of Ideas,” Indiana Law Journal (forthcoming)

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truth-finding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. 

However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by accuracy. False facts and those who spread them are not easily corrected. And some participants, through the dissemination of knowingly false information, seek to frustrate not just the process by which others seek to justify their beliefs, but also their faith that belief justification is even possible. 

This Article offers a novel but needed corrective to First Amendment theory by taking a social epistemology approach to considering actors’ motivations in the knowledge production system. In so doing, it introduces and theorizes the concept of counter-lies: disinformation concerning verifiable facts that is shared with the intent to deceive one into believing their mistaken beliefs are true. Despite counterspeech theory, counter-lies do not contribute to the search for truth, nor are they amenable to correction through collision with other ideas. The result of this disconnect is the overvaluation of knowing lies.

Like Mill, its progenitor, the marketplace theory of the First Amendment has failed to take seriously the epistemic duties that an effective truth-seeking process requires, and what happens when those duties are breached. The question is what role knowing and demonstrably false statements should play in a First Amendment theory that keeps those issues properly in view. 

‘So to Speak’ podcast with Neil Howe

View video

• “Generational differences and civil liberties with Neil Howe,” FIRE (April 11)

In late 2013, some of us at FIRE started noticing a change on college campuses. Students, who were previously the strongest constituency for free speech on campus, were turning against free speech. They began appealing to administrators more frequently for protection from different speakers and using the language of trauma and safety to justify censorship.

What changed? Neil Howe may have an answer. He is a historian, economist, and demographer who speaks frequently on generational change. His most recent book, "The Fourth Turning is Here," was published last year. Howe argues that history has seasonal rhythms of growth, maturation, entropy, and rebirth and that different generations take on different attributes reflecting their place in the cycle.

Joining Howe and host Nico Perrino for the conversation is FIRE President and CEO Greg Lukianoff, co-author of "The Canceling of the American Mind."

More in the news

• Eugene Volokh, “Can the Government Say: If You Want to Sell Us These Products, You Must Answer Our Questions About Them?” The Volokh Conspiracy (April 16)
• David Bauder, “Trump trial: Why can’t Americans see or hear what is going on inside the courtroom?” Free Speech Center (April 16)
• Eugene Volokh, “Center for Individual Rights Looking for Individual Rights Litigator,” The Volokh Conspiracy (April 16)
• Richard Hasen, “2016 Election Fraudster ‘Ricky Vaughn’ Might Finally Be About to Face the Music,” SLATE (April 1)

2023-2024 SCOTUS term: Free expression and related cases

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (argued Oct. 31)
• Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton (argued: Feb. 26, 2024)
• National Rifle Association of America v. Vullo (argument: March 18, 2024)
• Murthy v Missouri (argument: March 18, 2024)
• Speech First, Inc. v. Sands (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas and Alito, dissenting)
• Gonzalez v. Trevino (argued March 20, 2024)

Pending petitions

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Pierre v. Attorney Grievance Commission of Maryland
• O’Handley v. Weber

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• Mckesson v. Doe (Separate statement by Sotomayor, J.)
• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion))
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States (argued April 16)

Special FAN post

FAN 419.1: “Falsely claiming a First Amendment right at a dinner party at private home”

Previous regularly scheduled FAN

FAN 419: “Fueling the FIRE: Responses to Richard Hasen on how the government should identify professional journalists for access and protection”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.