Chen and Marceau teach at the Sturm College of Law at Denver University and have especial expertise in constitutional law, and respectively in public interest law and animal law. In their co-authorship, they examine the social phenomenon of undercover reporting that lies at the intersection of journalism, tort law, and the First Amendment—and often animal law, too.
I know Chen best for his work in opposing ag gag laws: statutes designed to stop and punish journalists, activists, and whistleblowers from investigating and revealing wrongful conduct and animal cruelty in the agricultural industry, especially by way of undercover video recording. Chen has worked against ag gag in Idaho, Iowa, Kansas, and Utah. I've been privileged to sign on to some of the amicus briefs he has coordinated.
Chen and Marceau leave no stone unturned. I was intrigued especially to read about the history of undercover reporting in the United States, the evolution of undercover reporting in its treatment in journalism ethics, and the thorough explication of undercover reporting in tort and First Amendment law.
Upton Sinclair's 1905 The Jungle, a novel based on real-life undercover reporting in the meatpacking industry, was my mind's go-to on the early history of the practice. Apropos of the present Women's History Month, however, it was female reporters such as Nellie Bly who carved out a niche for undercover reporting in the popular imagination in the late 19th century and deserve the most credit for pioneering the genre.
Bly, born Elizabeth Jane Cochran, famously had herself committed to a deplorable New York mental institution in 1887 for 10 days before a New York World lawyer secured her release, per prearrangement. Chen and Marceau recount the stories of Bly and other so-called "girl stunt reporters." They trace the history even further, as well, to antebellum abolitionists determined to expose the horrors of slavery.
Chen and Marceau explore a range of treatments of undercover reporting in journalism ethics, including the qualified permissiveness of the 1996 Code of Ethics of the Society of Professional Journalists, preserved in the more recent 2014 iteration. They observe as well the almost complete prohibition on the practice at National Public Radio, where journalists may engage in deception only when necessary to protect themselves in a conflict zone, and secret recordings may be used in only extraordinary circumstances.
A case that naturally arises throughout the book is the ABC News investigation of hygienic practices at Food Lion in the 1990s (at Reporters Committee). This case was contemporary with my university study of journalism, so was front and center in my class on journalism ethics. Whether or when journalists might engage in deception to get the story is a favorite point of discussion in journalism ethics class. The problem stratifies the need for public trust in journalism across the micro layers of people who are the subjects of stories and the macro layers of readers and the public interest.
A court in Food Lion ultimately held that ABC journalists could be sued for trespass or breach of loyalty, but awarded only nominal damages. The factual problem for the plaintiffs that precluded a more substantial damages award was that notwithstanding the concealment of their motives, the journalists had been given jobs at Food Lion, and they did their jobs. So from a damages perspective, Food Lion got what it paid for. The appellate court, unlike the trial jury, was unwilling to consider the reputational harm flowing from truthful disclosures, if deceptively obtained, as any kind of compensable loss.
The outcome in FoodLion was consistent with the broad propositions of First Amendment law that there is no right to gather the news, which is why the Freedom of Information Act is a statutory rule, not a constitutional one; and that journalists are not exempt from generally applicable expectations of law, such as honoring contracts, obeying police orders—and not trespassing. As Chen and Marceau observe, the outcome exerted a chill in investigative reporting.
However, the Food Lion rule is hardly absolute, Chen and Marceau also aptly observe. The rule of no-right-to-gather-news has never been wholly true. The courts have given media latitude to test the limits, for example disallowing wiretap liability for receiving probably illegally intercepted communications. And technological advances have complicated the picture. A majority of U.S. circuit courts now, in a post-George Floyd world, have held that the First Amendment protects video-recording police in public places. The proposition seems right, but it doesn't square with the news-gathering rule.
The outcome in Food Lion further hints at a deeper problem in tort law that Chen and Marceau explore: the problem of damages in cases of only notional harm. In contemporary doctrine, a trespass with no infliction of physical harm or loss might entitle a plaintiff to an equitable remedy of injunction, but no more than nominal damages in tort law, thus Food Lion. Though with no damages in the offing, there is no deterrence to deceptive trespass, a logic that likely explains the eventual waning of Food Lion's chilling effect. The problem bleeds into the contemporary debate over the nature of damages in personal privacy violations.
Journalism exceptionalism resonates as well in the problem of trespass and consent. Food Lion suggests that consent to enter property is vitiated by deception as to one's motive. Chen and Marceau explore opposing academic and judicial views on the question.
In a remarkable work of empirical research unto itself, Chen and Marceau's chapter 6 presents compelling data to show overwhelming public support for undercover reporting to expose wrongdoing. Public support seems to transcend political ideology and even whether the perpetrator of deception is a journalist or activist.
Chen and Marceau argue summatively and persuasively for a qualified legal privilege to protect journalistic deception in undercover reporting. Historical, ethical, and legal authorities all point in the same direction. Even the Fourth Circuit in Food Lion hedged its bets, observing that generally applicable employment law as applied in the case had only an "incidental effect" on news-gathering; in other words, news-gathering was outweighed as a consideration, not shut out.
Technological advances and citizen journalism will continue to generate conflict among conventional norms of property and fair dealing, evolving norms of privacy, and public interest in accountability in private and public sectors. Truth and Transparency is an essential manual to navigate in this brave new world.
Here (and embedded below) is a webinar from the European Association of Lawyers for Democracy and World Human Rights about the February 20 and 21 hearings in the UK High Court of Justice. And here (and embedded below) are discussions of journalists, diplomats, and others who were in the room for parts of the hearings.
"..it's not partisanship...this is about government accountability. You can not form coherent policy positions...unless you have the info on which to base them. That's what Julian Assange is about. That's what resisting his extradition is about" Prof. Rick Peltz-Steele @UMassLawpic.twitter.com/9ONm9RDxVz
"[Assange]developed this amazing idea abt freedom of information absolutism...When he founded WikiLeaks..to make the best use of this new democratizing instrument on the internet" Prof. Richard Peltz-Steele @UMassLaw, co-signee letter to @TheJusticeDepthttps://t.co/RJLoxdBue7 2/ pic.twitter.com/umiT9FAvQz
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.
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.
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.
The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.
I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.
I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.
We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.
These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.
Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.
There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.
The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.
Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.
Our editorial hearts sank. Had we protected the wrong person?
My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.
Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.
In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.
So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start.
I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.
Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.
In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.
McGoldrick wrote "that since Bloomberg most media organisations have, save in
exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such
identification is in the public interest."
Present editor and FOI advocate extraordinaire David Cuillier has moved into the leadership role at Florida's Brechner Center, so he needs someone new at the helm of the journal. The associate editorship is a three-year gig with a $2,500 annual stipend.
I serve on the Journal's Editorial Board. So you know it's a worthy cause.
Deteriorating grammar and style conventions signal the crumbling of western civilization.
I'm a grammar-and-style curmudgeon, so take my declaration with a grain of salt. Still, I feel pretty confident about it.
When I was in journalism school, in what was then still called the "print" program, I and my cohort were allowed to make one technical mistake in a story without penalty.
A freebie. One. Of whatever kind: spelling, grammar, style. After that, the grade plummeted precipitously. I tested the system with carelessness just once, and it was damage enough to deprive me of an A for the semester.
Nowadays I find I have to give student papers separate reads for technical and substance. There are so many technical problems in the average draft that I can't focus on the substance at the same time. I give separate grades for tech and substance, too, before I combine them in a formula weighted in favor of substance.
In fairness, most of my students did not go to journalism school. As American legal education is open to all majors, some students have not written since grade school. Our ranks include accounting majors who took only math-oriented tests in non-liberal arts bachelor's programs. (How is that even a thing?) Where they are on tech is not their fault, but a failure of American K16 education. My foreign students who speak English as a second language usually exhibit better tech skills than the average American 1L—notwithstanding telltale struggle with the confounding rules of definite and indefinite articles.
I'm proud of my daughter, who went to a public school that, exceptionally, emphasized writing. We chose where we live for the school. She didn't love the heavy writing emphasis at the time, and fair enough. But when she went to arts school for university, she was shocked by how poorly prepared her peers were in writing, including those who wished to build careers writing creatively for TV and film. Her skill in writing set her apart, as it continues to in the workforce.
Many students who struggle initially, to their credit, embrace my feedback, readily extrapolate appropriate rules, and greatly improve their writing. Some students masochistically seek out my writing tutelage because they know they've been cheated in their education and want to improve. Of course, a few resent and resist the feedback. The quality of legal writing in the everyday practice of law suggests that they're not wrong about where the norm falls.
Just spend a few hours in the briefs at any courthouse, and you'll see what I mean. When I started teaching legal writing in 1998, I went to the courthouse in Little Rock, Arkansas, to compile some model practice documents for my students' reference. I found almost nothing I could hold up as exemplary. That was disappointing but educational.
As my reputation precedes me, my 1L students sometimes worry over whether I'll knock them down for grammar on final exams. I won't, I tell them, unless a misusage creates ambiguity or otherwise impedes the reader's understanding. That does happen. But even I have now and then mistyped a "your" instead of "you're" when writing under time pressure, phonetic ideation direct to fingers. Timed exams are not research papers or practice documents.
UCLA Law Professor Eugene Volokh wrote ably for Reasonearlier this week on the use of "they" as a singular pronoun. Like his academic legal writing, his Academic Legal Writing is superb, and I routinely recommend it. Like he, apparently, I have long counseled students on ways to avoid singular constructions that invite the problem of generic gendered pronouns. When working over the text doesn't work—sometimes, the difference between singular and plural is required by legal precision—I recommend "he or she," however cumbersome.
Nowadays the problem of singular "they" bleeds into the issue of gender identity. I am sympathetic with how that "they" emerged amid the failure of "ze" or another creative alternative. When that "they" is used, it is treated grammatically as a plural, even if the person is singular. I'm not here opining on that issue. Professor Volokh gave the best advice, anyway: essentially, know your audience.
I give students the same advice generally. Maybe the judge in your case was an accounting major and will be satisfied as long as you can string sentences together into recognizable paragraphs. But maybe your judge is a curmudgeon. If a student needs a better reason to know the rules than because they're the rules, then it serves to know that it might pay, literally, to be highly fluent in the lingua franca.
I've been thinking about this not only because of Professor Volokh's item, but because I returned to my home state of Rhode Island last week to be confronted with two curiosities on newspaper fronts at my local grocery store. Here's the Barrington Times of August 13:
Barrington Times, Aug. 16, 2023: "'None of these fields are getting rest.'"
This headline is not necessarily wrong, for a couple of reasons. But it gave me pause, frozen for a time in the grocery store portico.
The conventional wisdom is that the word "none" is a contraction of "not one." So, like "one," usually, "none" should take a singular subject. The line should be, then, "None of these fields is getting rest."
At the same time, what we might call "linguistic originalists" point to a long history of English-language usage tolerating both singular and plural treatment of "none." The rule oft recited today is that "none" should be treated as a plural when it reads as "not any," or when the range of things to which it refers is plural. So if the subject of the headline is "not any of these fields," then "are" is suitable.
I find that rule profoundly unhelpful, because there is no real difference between "not one" and "not any." "Not one" almost invariably refers to a range of multiple candidates. Many sources on grammar give examples in which plural usage pertains to the subject structure "none of [them/these/etc.]," but that's not a sensible distinction either. The headline statement here is wholly equivalent to "none is getting rest," were the line to appear in a context in which the adjectival phrase "of these fields" were unnecessary for clarity.
Other sources use a flexible rule in which the writer chooses based on emphasis. Treating the subject as singular emphasizes the singularity. That's hardly a rule. But if it pertained, I would contend that the above usage is wrong. For if one field were rested at any given time, there would be no newsworthy assertion that a new field is needed.
I recognize, too, by the way, that the headline is a quote. According to my old-school journalistic rules, a quote can be changed to make it grammatically correct, as long as the grammatical error is not salient to the story. The theory behind the rule is that the ethic of truthfulness yields to the principle of doing no harm (embarrassment) to persons identified in stories. At some point, that approach presents policy challenges around dialect, cultural vernacular, and education policy. But none of those reasons here would preclude changing the quote.
Regardless of where one comes down on the Barrington Times headline, I contend that the treatment of "none" as plural is now widely reflexive. And legal writers do themselves a forensic disservice by failing to consider the choice. If "not one" is the salient concept, then the treatment should be singular. A writer in argument, especially, might be served best by the singular, or even by regressing "none" to its ancestor: for example, "Not one of the bystanders was capable of aiding the plaintiff" is a more potent declaration than "none were," because the former usage emphasizes the existence of multiple counterfactuals.
Here's another front page, from The Rhode Island Wave:
The Rhode Island Wave, Aug. 2023: "Liquor World: Now Open In It's Newest Location."
The subhede on this ad reads: "Now Open / In It's Newest Location."
This is an easy one, and it's definitely wrong. "It's" is a contraction for "it is." The headline does not say, "In It Is Newest Location." The "it's" is rather a possessive and should be "its."
I recognize that the Wave is a free advertiser, and the copy in question appears (horrifically, atop the front page) in an ad. In my book, which, we've established, is unrelentingly curmudgeonly, that doesn't let the editor off the hook. (Just ask The New York Times.) The fact that the Wave is a free advertiser might, though, explain the quality of the journalistic editing.
I see "its"/"it's" errors all the time. It's disheartening. I get that "it's" is
initially confusing, because, especially in formal writing, we are accustomed to apostrophes appearing
in possessives more often than in contractions. But then
you learn the rule, you turn six, and life moves on.
At risk of exceptionalism, I believe that the American model of law as graduate education, open to a full range of undergraduate majors, is a strength of the American legal system. Our bar is populated by a gratifying diversity of knowledge bases, skill sets, and life experiences that are little known in the five-year LL.B. model.
At the same time, and as long as our four-year higher ed system permits disciplinary focus to the exclusion of liberal arts, we in legal education bear a burden to teach American law students how to speak and write in what is for most of them their native tongue.
KTAL started broadcasting in Texarkana, Ark., Judge Arnold's home town, in 1953, as KCMC, using the call sign of its sister radio station that had broadcast since 1933. Born in 1941, a young Judge Arnold was captivated by the newly prevalent medium. At age 14, he got his first job at the station, a go-for for election returns. Four to five decades later, the once TV go-for and camera operator earned a reputation for libertarian interpretation of the First Amendment.
Though, notwithstanding three decades on the federal bench, it's "just a regular ol' tort case, like a slip and fall," in diversity or supplemental jurisdiction, that gives Judge Arnold the "most joy," he told the Arkansas Democrat-Gazette in a 2013 profile.
A polymath, Arnold—full disclosure: a cherished friend—studied engineering and classics and had an illustrious academic career before his appointment to the federal bench. With an S.J.D. from Harvard University, he served, inter alia, as professor and dean at the Indiana Maurer Law School and as a vice president and law professor at the University of Pennsylvania. President Ronald Reagan appointed Arnold to the district bench in his home jurisdiction of western Arkansas in 1985, and President George H.W. Bush appointed him to the Eighth Circuit in 1992.
Now on senior status, Judge Arnold still hears cases and occasionally writes opinions. But retirement from full-time service on the bench afforded him time to return to his passion for history. In the 2010s, he cleared his desk of works in progress with a series of articles for the quarterly journal of the Arkansas Historical Association. Here are his most recent five:
The latter, a fascinating insight into the conflicted and delicate position into which the Revolution cast indigenous leaders in America—I caught up on my reading earlier this summer—was especially well received in critical circles.
But the top Arnold book for me is The Arkansas Post of Louisiana (2017). When I visited Judge Arnold in the spring, he said he is most proud of The Arkansas Post because it was a collaboration with Gail K. Arnold, the judge's wife, who provided photographs and edited illustrations. As a veteran Arkansas hiker, I immensely enjoyed visiting the Arkansas Post National Memorial many years ago, armed with Judge Arnold's earlier writings on frontier settlement and the colonial period.
Judge Arnold's work on legal history is featured in my fall Torts class annually, as his 1979 law review article on the origins of common law is excerpted in my textbook, Tortz: A Study of American Tort Law, volume 1 (Lulu, SSRN 2023). In Accident, Mistake, and Rules of Liability in the Fourteenth-Century Law of Torts, Arnold challenged the conventional wisdom of the renowned Oliver Wendell Holmes, Jr., who had posited that modern culpability doctrine was the achievement of a gradual common law evolution dating to medieval England.
It's often struck me that Judge Arnold has earned a remarkable legacy in both author and subject indices of historical research.
Pres. Trump leaves Marietta, Georgia, in January 2021.
Trump White House Archives via Flickr (public domain)
The news is ablaze with the "odd 15-minute PR tour" of the grand jury foreperson in the Georgia Trump investigation, as former U.S. Attorney Harry Litman characterized her appearances to CNN.
Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.
I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.
The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.
More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.
For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).
The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.
The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.
In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.
In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.
