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MSNBC is used to taking shots from Republicans and conservative media competitors. But, in the run-up to the 2020 presidential election, the network is facing consistent criticism from some of the people most likely to champion it: progressive Democrats.

"Some members of the public are under the mistaken impression that MSNBC is the progressive counter to Fox News, which couldn't be further from the truth," says Adam Green, co-founder of the Progressive Change Campaign Committee. "It's not a progressive perspective. It's an establishment perspective."

Cenk Uygur, who spent six months as an MSNBC host in 2011 before founding the brand The Young Turks and recently embarking on a run to replace Rep. Katie Hill in Congress, has also emerged as a critic. "The problem is having everybody think you're the progressive standard-bearer when you might be running the most anti-progressive programming on air," he says.

Specifically, progressive activists, operatives and 2020 campaign staffers speaking with The Hollywood Reportersay that MSNBC's hosts and personalities have discounted more left-leaning Democratic candidates like Sen. Bernie Sanders and refused to take some, like candidate Andrew Yang, seriously.

Political consultant Rebecca Katz, who has advised New York progressive hopefuls like actress Cynthia Nixon and now-mayor Bill de Blasio, says MSNBC is among the cable news networks that "never treated Bernie as a frontrunner," despite the senator's success in raising money from a broad coalition of donors. She adds, "Bernie Sanders has raised the most money from the most people of anyone in this race. That he is an afterthought on cable news, after months and months of people saying Mayor Pete Buttigieg could win when he was 8 percent in the polls, is quite the juxtaposition."

More recently, Democratic candidate Yang has taken shots at the network, accusing Comcast-owned MSNBC of shortchanging his campaign and blaming it for a series of on-air errors that have omitted his candidacy. He has refused to guest on MSNBC until he receives a public apology.

MSNBC personalities, most notably Morning Joe regular Donny Deutsch, also have been criticized for comments made about Sen. Elizabeth Warren's candidacy. On Nov. 27, Deutsch said that Warren has a "likability issue," a comment that MSNBC contributor Karine Jean-Pierre pushed back on as a "problematic" and gendered critique.

To be sure, MSNBC veterans including six former on-air hosts, contributors and producers speaking with THR don't see a conspiracy against the more progressive candidates in the race, and the network has shown no interest in publicly feuding with them.

"We are proud to have a diverse range of voices from all political perspectives in our lineup, which includes smart opinion programming in primetime as well as breaking news coverage," an MSNBC spokesperson says. "We've made a concerted effort to invite balanced and thoughtful discussions to provide clarity on the critical stories that are shaping the nation."

A former Democratic contributor for MSNBC argues that the network has been very consistent in having a "pretty mainstream progressive view," rather than "following the energy of their political base in the same way that Fox News does."

Assessing the situation, the ex-contributor says the network's progressive critics are probably "frustrated that the kind of energy that they're feeling among their base and at the grassroots level and across the campaign trail ... is not the same kind of energy they're feeling at MSNBC. It's not because MSNBC is treating them unfairly, it's that they don't understand what MSNBC is about."

In an effort to defuse tension with the Yang campaign, the network has not discussed the feud publicly and recently attempted to smooth things over in a Nov. 23 conference call with his advisers. S.Y. Lee, a spokesman for the Yang campaign, rejects MSNBC's contention that it apologized during the call but declines to speak further about the strained relationship.

Despite their concerns, even the network's biggest critics have largely positive things to say about the primetime opinion lineup, most notably host Chris Hayes. And Rachel Maddow, of course, is MSNBC's biggest star and ratings draw, holding her own against Fox News' ratings king, Sean Hannity.

Viewers have been responding in big numbers throughout the Trump era, though viewership has dropped this year compared to 2018. In the third quarter of 2019, MSNBC bested CNN in total viewers for both total day (880,000) and primetime (1.53 million), though CNN won both categories in the 25-to-54 demo and Fox News was the overall winner.In November, MSNBC boasted four of the top 10 shows in cable news, with Maddow in third place (3,175,000 total viewers), Lawrence O'Donnell's show in eighth place (2,266,000 total viewers), Nicole Wallace's afternoon show in ninth place (1,994,000 total viewers) and Chris Hayes in tenth place (1,984,000 total viewers).

While the network's ratings have slid, it is projected to generate more advertising revenue in 2019 ($614 million) than in 2018 ($578 million), according to Kagan, a media market research group within S&P Global Market Intelligence.

MSNBC also has faced public criticism about the diversity of its hosts. "It had a diverse lineup and they did away with that," a former on-air host says. The lineup once included daily shows from Joy Reid and Al Sharpton, both African American, who now host only on weekends, along with the since-departed Tamron Hall, Tour, Ronan Farrow and Jose Diaz-Balart (now with NBC News). But, in recent years, the network has added Craig Melvin, Ali Velshi, Ayman Mohyeldin and Yasmin Vossoughian as diverse weekday hosts.

MSNBC chief Phil Griffin and NBC News chairman Andy Lack have taken flak for some of these departures and for hiring both "Never Trump" Republicans and pro-Trump conservatives like Hugh Hewitt, who was given a Saturday morning show that was canceled in June 2018 but is still a contributor for the network.

Over the last few years, since Lack returned to the network in 2015 and talent changes were made, the network's daily format hasn't really budged: opinion in the morning, followed by several hours of hard news, followed by several hours of left-leaning opinion shows, capped off by an 11 p.m. news show hosted by Brian Williams.

While that formula has largely been successful, a former manager at the company predicts that more changes will be made to the dayside lineup to make the transition from news programming to opinion commentary "cleaner." For example, Wallace's show, Deadline: White House, is a largely opinion show that is sandwiched between two shows hosted by journalists, Velshi at 3 p.m. and Meet the Press Daily (and weekly) host Chuck Todd at 5 p.m.

"There's a lot of talk about Nicole Wallace, generally, because she's very good," the person says. ("Nicolle Wallace is really strong," says former CNN U.S. president Jon Klein. "She's just someone you look forward to watching every day.")

For MSNBC's sake, progressive activists are urging the network to course-correct and tap into party energy on the left before it's too late. Uygur notes, "If throughout this election cycle they never have progressives on, there's no way to undo that damage."

This story first appeared in the Dec. 19 issue of The Hollywood Reporter magazine. To receive the magazine,click here to subscribe.

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MSNBC's Biggest Election Year Fight May Be With the Left - Hollywood Reporter

from the stay-in-your-own-lane,-g-men dept

The Second Circuit Court of Appeals has suggested -- not exactly ruled -- that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.

The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron -- an Albanian immigrant -- was ultimately headed to Pakistan to join a terrorist organization.

Agron is somewhat of a unicorn. He's one of the few defendants that's actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.

The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be "minimized" to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans' communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that's not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA's collections and the Intelligence Community's access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.

The Second Circuit's ruling [PDF] kicks Hasbajrami's case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA's collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA's collections, not so much.

The issue here isn't the collection itself or any inadvertent collection of US persons' communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn't say the FBI can't look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

It is true the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene.

But that's where the analogy ends.

But lawful collection alone is not always enough to justify a future search.

Pointing to the Riley decision, the court notes that the lawful seizure of an arrestee's phone does not give law enforcement the right to perform a warrantless search of its contents.

Searching the FBI's own data stores tipped to it by the NSA isn't nearly as problematic as what the FBI appears to have done here: browsing the NSA's much larger collection without a warrant to find more communications originating from a US person. Say goodbye to any flattering "evidence locker" analogies.

If such a vast body of information [250 million emails as of 2011] is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.

And there's where the Fourth Amendment fits in:

To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about that person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of a crime will be found by a search.

The case returns to the lower court so it can consider the Fourth Amendment implications it chose to ignore when considering the defendant's motion to suppress evidence that is starting to look like it was acquired unconstitutionally.

If this results in suppression, this case is going to travel right back up the judicial ladder. There's no way the government is going to let its backdoor searches be subject to a warrant requirement. Warrants create paper trails, and the last thing the IC wants is more paperwork linking domestic surveillance to foreign-facing NSA collections. This isn't a win yet, but if the district court aligns itself with the Appeals Court's suggestions, it could be a game changer.

Filed Under: 2nd circuit, 4th amendment, agron hasbajrami, backdoor searches, evidence, fbi, nsa, parallel construction, section 702

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Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment - Techdirt

Posted Thu, December 19th, 2019 9:13 am by Andrew Hamm

This week we highlight petitions pending before the Supreme Court that address, among other things, whether a motorists assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence, whether a levy that forces property owners to fund other individuals campaign donations implicates the First Amendments compelled-subsidy doctrine, and whether the government-debt exception to the Telephone Consumer Protection Act of 1991s automated-call restriction violates the First Amendment.

Thepetitions of the weekare below the jump:

Elster v. City of Seattle, Washington19-608Issues: (1) Whether a levy that forces property owners to fund other individuals campaign donations implicates the First Amendments compelled-subsidy doctrine; and (2) whether a compelled subsidy of speech should be examined under rational-basis review, as the decision below concluded, or whether a higher standard of review is appropriate.

Cisco Systems Inc. v. SRI International Inc.19-619Issue:Whether patent claims that recite only the abstract idea of collecting and analyzing data are patent-ineligible under35 U.S.C. 101andAlice Corp. Pty. Ltd. v. CLS Bank International.

Bell v. Pennsylvania19-622Issue:Whether a motorists assertion of his Fourth Amendment right to refuse consent to a warrantless blood test may be used as evidence of guilt for the offense of driving under the influence.

Barr v. American Association of Political Consultants Inc.19-631Issue:Whether the government-debt exception to the Telephone Consumer Protection Act of 1991s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Arizona v. Nunez-Diaz19-645Issues: (1) Whether the respondent, Hector Sebastion Nunez-Diaz, is categorically barred from establishing prejudice underStrickland v. Washingtonfor aPadilla v. Kentucky/Lee v. United Statesclaim because, as an unauthorized alien, he is without any legal right to remain in the United States; and (2) whether the Arizona Supreme Court erred in findingStricklandprejudice, where inter alia there was no evidence that the respondent had a viable defense either to the criminal charges or deportation.

Posted in Elster v. City of Seattle, Washington, Cisco Systems Inc. v. SRI Int'l Inc., Bell v. Pennsylvania, Barr v. American Association of Political Consultants Inc., Arizona v. Nunez-Diaz, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week, SCOTUSblog (Dec. 19, 2019, 9:13 AM), https://www.scotusblog.com/2019/12/petitions-of-the-week-74/

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Petitions of the week - SCOTUSblog

ANDERSON A man suspected of trying to sell look-alike substances at Hoosier Park Racing & Casino has had his drug-related conviction reversed, based on a claim of violation of the Fourth Amendment, which protects against unreasonable search and seizure.

In the 2015 case, Michael D. Johnson was patted down by a gaming enforcement agent at Hoosier Park in Anderson, according to The Indiana Lawyer.

A small amount of white powder was found on Johnson, but subsequent testing revealed the white powder was not a drug. It contained a chemical possibly deriving from baking soda.

Johnson was arrested and later charged with dealing in a look-alike substance. He moved to suppress the evidence obtained during the pat-down search, but the Madison County Circuit Court denied the motion. Johnson then objected at trial to the admission of the evidence found in his pocket, but the trial court determined the officer had completed a search incident to arrest when he removed the item from Johnsons pocket.

The Indiana Lawyer reported that the search stemmed from a man telling a security guard that someone had approached him and asked if he wanted to buy white girl, a slang term for the drug cocaine.

Johnsons description and interaction with the man was confirmed on surveillance footage prior to the gaming enforcement officer bringing Johnson into an interview room to conduct the pat-down search.

Indiana Court of Appeals found insufficient evidence to dispel Johnsons claim of a Fourth Amendment violation.

Original post:
Conviction reversed for phony drug sale at Hoosier Park - Newsandtribune

A man suspected of trying to sell look-alike substances at an Indiana casino has had his drug-related conviction reversed, with the Indiana Court of Appeals finding insufficient evidence to dispel a claim of a Fourth Amendment violation.

The case of Michael D. Johnson v. State of Indiana, 19A-CR-975, began in November 2015, when Brett Eversole was at the Hoosier Park Casino in Anderson. According to a report he gave to a security guard, a black man in a white hat had approached Eversole and asked if he wanted to buy a white girl, meaning cocaine.

The report made its way to gaming enforcement agent Zach Wilkinson, who confirmed the interaction based on surveillance footage that did not have audio. Wilkinson then found Michael Johnson, a black man wearing a white hat, and brought him into an interview room.

Once in the room, Wilkinson told Johnson he would need a pat down, which led Wilkinson to remove what felt like a ball of drugs from the suspects pocket. Johnson was handcuffed and read his Miranda rights, but subsequent testing revealed the white powder was not a drug. Instead, it contained a chemical possibly deriving from baking soda.

Thus, Johnson was charged with dealing in a look-a-like substance. He moved to suppress the evidence obtained during the pat-down search, but the Madison Circuit Court denied the motion. Johnson then objected at trial to the admission of the evidence found in his pocket, but the trial court determined Wilkinson had completed a search incident to arrest when he removed the item from Johnsons pocket.

Johnson was then convicted on a Level 5 felony charge and sentenced to four years, with three years suspended to probation. But the Indiana Court of Appeals reversed his conviction Thursday, finding the state failed to prove the search of Johnsons pocket was constitutional under the Fourth Amendment.

Johnson does not argue that Wilkinson lacked a reasonable suspicion of criminal activity and he does not challenge the decision to perform a pat-down search, Judge L. Mark Bailey wrote. But the encounter did not end with a pat-down.

The agent may have been conducting a carefully limited search of outer clothing to detect weapons when he discerned characteristics consistent with contraband, notwithstanding the fabric barrier. Or Agent Wilkinson, having received information of an attempted sale of contraband, may have reached into Johnsons pocket and examined the item before concluding it was likely contraband, Bailey continued. In the first scenario, Agent Wilkinson would arguably have, without exceeding the scope of a Terry pat-down for weapons, developed probable cause for an arrest. In the second scenario, Agent Wilkinson would have conducted the search before having probable cause for an arrest and thus the seizure did not take place in a search incident to arrest.

Here, the state failed to prove that Wilkinson had probable cause, Bailey said, writing that the evidence does not dispel concern that the ball of powder retrieved from Johnsons pocket was obtained in violation of his Fourth Amendment right to be free from an unlawful search and seizure.

Though Johnsons conviction was reversed under the Fourth Amendment, in a footnote, Bailey said Johnson also referenced Article 1, Section 11 of the Indiana Constitution. But because he did not develop a corresponding argument, his argument that the search violated the Indiana Constitution was waived.

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Conviction reversed for would-be drug sale at casino - Indiana Lawyer