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Is the Department of Homeland Security (DHS) still filing intelligence reports about journalists?

It seems like a simple question. And I confess I wasnt expecting the routine status report a federal judge ordered the government to file on Wednesday to raise my eyebrowsmuch less to warrant an article. But asked to address this apparently easy question, the Justice Department saidin essencethat its not sure and will get back to the judge in a few weeks. Defendant needs additional time to appropriately address the question. ... Defendants response could potentially have a wide implication beyond this particular case.

I dont have any idea what it means either.

This strange filing is actually the second of two bizarre positions the government has taken in my lawsuit over DHSs filing of two open source intelligence reports (OSIRs) about me in 2020. I wont rehash the story of the two reports, about which I have written in detail elsewhere. To understand the first weird position, and how it led to this second one, the only relevant facts are these.

The two intelligence reports (here is the first and here is the second) were leaked to Shane Harris of the Washington Post, along with a third about New York Times reporter Mike Baker. Following their disclosure, DHS issued a statement assuring the public that the practice had been stopped: Upon learning about the practice, Acting Secretary [Chad] Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press. In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter.

I filed a Freedom of Information Act request to reveal the paper trail on the reports about Baker and me, as well as any other journalists who might have had such reports filed about them. I also sought similar open source reporting for any other people based on their First Amendment-protected activity, information about the use of such open source reports, information about any investigations of the practice after it was revealed, and information concerning policies and procedures about such reporting. In March of last year, I sued, having received no documents in response to my request.

Production of material under the suit has been slow, and its fair to say that the litigation has not yet shed significant light on how DHS came to be filing these reports on journalists, what the scope of the activity was with respect to other peoples First Amendment rights, or how the agency ultimately evaluated the propriety and legality of this sort of reporting. I remain hopeful that it will do so in good time, though under the current production schedule, it will be a while.

One thing the department has disclosed, however, is the specific reports about mebut with an important catch. The documents are highly redacted. Assuming these are the same documents that were leaked to me in full, it appears that my name cannot be releasedto me. It further appears it cannot be disclosed that my Twitter feed is the subject of the reports. Ditto the substance of my tweets, which is available to all of my more than 400,000 Twitter followers and anyone else who wants to see them.

Remarkably, the government takes the position that these redactions of publicly available unclassified information are justified on the basis of protecting intelligence sources and methods. As the government explains its position to the court:

[T]he Department will provide a declaration explaining that the redacted information within the OSIRs included the sources and methods used by I & A and that the disclosure of these documents in full would reveal intelligence sources and methods utilized by I & A.

Specifically, the records would reveal: (1) the underlying sources of information and intelligence methods that I & A relies upon to engage in information collection that forms its analytical assessments and operations; (2) information that, taken together, may reveal these methods even if it does not do so individually; and (3) information which would reveal the method in which I & A shares information with other entities. Further, to avoid irreparable harm, I & A must protect not only specific sources, but also information that would allow a reader to discern a source or type of source, information revealing intelligence or analytic methods, and information that would assist targets in evading lawful intelligence activities. The obligation to protect sources and methods is direction from Congress that may not be waived by the Department, regardless of whether the source or method is sensitive or public, and regardless of whether a plaintiff has concrete or hypothetical knowledge of the source or method being referred to.

Suffice it to say that I and my lawyers take a rather different view of the matter, and sooner or later, the court is going to have to decide whos right.

This brings us to last weeks status hearing, where the immediate issue before U.S. District Judge Randolph Moss was whether to decide this sooner or later. My lawyers (Jacob Tracer and Andrew Elliott of Jenner & Block) had asked Judge Moss to resolve the question now of whether protecting sources and methods could possibly justify these redactions, on the theory that the answer to this question could affect the rest of the governments production. If we are right and the governments position is ridiculous, we argued, it would save everyone time to know that now. The government, by contrast, asked Judge Moss to wait until all the production is done.

Judge Moss indicated, as a general matter, that he prefers to resolve disputes over production at the end, not individually along the way. But there is one thing that might change his thinking on this score, he noted, and that was if he was not confident that the underlying activitythe filing of intelligence reports about journalistshad actually ceased. It was in that context that he asked government counsel to address this question directly. To make sure she had a chance to consult with the client agency, he asked her to file a brief on the matter, rather than demanding an answer in court.

This is the background to the governments filing Wednesday, and to be frank, I was not expecting the Justice Department to be in the odd position of being unable to answer the judges question. Government counsel set her own deadline for this filing, in response to a question from the judge. She asked him for a week in which to file the brief, and he granted her that timeat the end of which she was still not able to give him a simple no in response to his question of whether DHS is still filing intelligence reports about journalists. Thats a little unnerving.

Here is the relevant portion of her status report:

On September 21, 2022, the parties appeared for a pre-motion conference and the Court ordered, inter alia, Defendant to file a status report addressing whether ... Defendant discontinued the practice of collecting information involving members of the press. ...

In terms of the first question, Defendant needs additional time to appropriately address the question, as expressed during the September 21, 2022, pre-motion conference. Defendants response could potentially have a wide implication beyond this particular case. Consequently, Defendant requests additional time, to and through October 21, 2022, to provide a response.

I may have to wait until Oct. 21 for clarity on this matter, which I agree has a wide implication beyond this particular case.

In the meantime, however, I would like to stress two things: First, I am not an intelligence source; and second, reading my Twitter feed is not a sensitive intelligence-gathering method. Much as it would flatter my ego if seeing my daily Good Morning image and #BeastOfTheDay tweets counted as an intelligence method, it doesnt. Its great if government agencies and their personnel want to read my work. But the inability to distinguish between reading a journalists social media account and a sensitive intelligence-gathering method is dangerousboth for the intelligence community that cant see the difference and for the journalists who have to operate in an environment conditioned by that inability.

Here is the original post:
I Am Not a Source; Reading My Twitter Feed Is Not a Method - Lawfare

Dear Editor: A part of the First Amendment is under attack.

There has been a renewed resurgence to declare the United States a Christian nation, no longer keeping the church separate from the state. Christian nationalists are promoting antidisestablishmentarianism.

That word has gained a renewed importance no longer just one of the longest words in the dictionary. It refers to Christian nationalists advocating for Christian churches to receive government patronage rather than be disestablished, meaning separate from state support.

Proponents believe the church should have say and sway in our country's governance and have an official status there. There is even a movement in Congress for this.

Rep. Lauren Boebert of Colorado is spearheading an effort to have the United States declared Christian, preferably with her own version and vision as a foundation. She has up to 61% of Republicans in her camp. But this might in numbers does not make it right.

It's stated in the First Amendment to the Constitution that Congress can neither establish, nor prohibit the practice of religion. To declare the United States Christian would violate the establishment clause and put a de facto pariah label to non-Christian religions and the agnostics and atheists among us. These groups make up to 35% of the United States population. That is a lot of people who would be given outcast status.

Many Christian nationalists cry foul over gun control regulations. They scream that their Second Amendment rights are being violated, yet when they want to violate the First Amendment with no separation of church and state, that's OK. For them the Constitution has become the Constitution is to be used as a convenient avenue to get what they want.

Bill Walters

Fitchburg

Send your letter to the editor to tctvoice@madison.com. Include your full name, hometown and phone number. Your name and town will be published. The phone number is for verification purposes only. Please keep your letter to 250 words or less.

Read the original here:
Letter | Beware the Christian nationalist movement | Letters to the Editor | captimes.com - The Capital Times

Attorney General Paxton has joined an Alabama-led multistate amicus brief in the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, fighting to defend the First Amendment rights of a Jewish synagogue facing unconstitutional discrimination.

The case revolves around the Hillsborough Area Regional Transit Authority (HART), a publicly-funded transit system, that refused to allow Young Israel of Tampa to advertise its Chanukah on Ice program pursuant to a policy banning religious advertising. After the district court enjoined its policy, HART appealed to the Eleventh Circuit.

As the courts have ruled on several occasions, public entities violate the First Amendment when they engage in viewpoint discrimination, regulating speech based upon disagreement with the point of view being expressed. That is precisely what HART did here.

HART further departed from the First Amendment by lumping in all religious advertising with more traditional categories of prohibited advertising, such as ads containing graphic violence or nudity. It flies in the face of the First Amendment, and the American tradition of respecting religious freedom, for HART to draw a moral equivalency drawn between a synagogue hosting a community event commemorating a religious holiday and pornographic or violent advertising

As the brief states: [T]he policy is at odds with the history and tradition of the First Amendment, sends the perverse message that religious discourse is like the other subjects HART bans (alcohol, pornography, discriminatory messages, and the like), conflicts with modern First Amendment jurisprudence forbidding viewpoint discrimination, and flunks even HARTs preferred test for content-neutral speech restrictions.

To read the full brief, click here.

View post:
Paxton Works to Safeguard First Amendment Protections for Religious Group Facing Illegal Discrimination - Texas Attorney General (.gov)

Professors at public universities have no right to freedom of speech when they teach, lawyers for the State of Florida argued in a court filing last week. Over the past few days, many academics have expressed outrage, describing Floridas stance as a direct, troubling attack on academic freedom. Some have even called it fascist.

But theres genuine uncertainty over the extent to which the state can dictate what state-college instructors teach, two law professors told The Chronicle.

As college instructors themselves, they obviously had a stance. Yet they admitted that existing law and precedent isnt entirely clear. It remains more of an open question than those of us who are academics would like it to be, said Frederick Schauer, a First Amendment scholar at the University of Virginias School of Law.

The court filing was in defense of the states Individual Freedom Act, commonly known as the Stop WOKE Act, which bars instructors at public institutions from teaching certain ideas related to race, racism, and sex, and which at least two groups of students and professors have sued over.

The curriculum used in state universities and the in-class instruction offered by state employees count as the Florida governments own speech, the lawyers wrote. Therefore: The First Amendment simply has no application in this context.

Its a powerful argument if you can get it accepted, said Timothy Zick, a professor who teaches about the First Amendment at the William & Mary Law School. The First Amendment just drops out of the picture.

But will the argument be accepted?

Floridas filing discusses a 2006 Supreme Court decision in Garcetti v. Ceballos. In that case, the court decided 5 to 4 that state employees didnt have First Amendment rights while they were doing their jobs. (Schauer gave the hypothetical example of an anchor at a public TV station needing to read their script, as part of their job.) But Supreme Court justices at the time deliberately left unanswered the question of whether that principle extended to college classrooms.

We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching, the since-retired Justice Anthony M. Kennedy wrote in the opinion of the court.

Since then, lower courts have often decided that Garcetti doesnt apply to college-level scholarship and teaching. The courts have recognized the virtues of relatively unconstrained academic inquiry, at least at the university level, Schauer said.

In addition, two midcentury Supreme Court cases, decided at a time when U.S. institutions were panicking about communism and trying to make professors sign anti-communist statements, linked the idea of academic freedom to professors First Amendment rights, Zick said.

But these cases stop short of establishing that something like Garcetti definitely wouldnt apply to college teaching, Schauer said. The courts didnt say whether there was anything special about professors that gave them protections that other state employees might not have, he said.

Plus, there are clearly some limits to the job. A professor assigned to teach constitutional law cant simply decide to talk about astrology instead and claim it was a free-speech issue, which Schauer offered as another example.

Schauer and Zick both sounded warnings about what public higher education might look like if Florida prevails. Both more liberal and more conservative states might flex their abilities to set curriculum mandates. A state could even require professors to say things they dont believe, Zick said.

All of this would make us far worse off, he said, in terms of what the universitys principal mission is, which is to develop knowledge and distribute it and to teach and to learn.

Link:
It's Not Clear Whether Public-College Professors Have First Amendment Rights When They're Teaching - The Chronicle of Higher Education

from the what-could-it-possibly-be dept

Right after the 5th Circuits ruling on Texas HB 20 law on content moderation came out, I wrote up a long post going through the many, many oddities (and just flat out mistakes) of the ruling.

Since then, one thing that was bothering about this ruling was that it wasnt just wrong on the law, wrong on the relevant precedents, and wrong on the 1st Amendment but it literally went against the last few decades of how conservative Federalist Society judges have been expanding the 1st Amendment to cover more and more activity by organizations (which, contrary to popular opinion, I actually think has been mostly correct).

The Daily Beast asked me to write up an analysis of the 5th Circuit ruling, and one thing I focused on was just how blatantly basically the entire Republican ecosystem completely reversed on this issue over the last year and a half since Donald Trump got banned from Twitter. I mean, at a very direct level, Republicans insisted (falsely) that net neutrality was an attack on the free speech rights of internet providers, and that the very limited net neutrality rules that the FCC put in place were the government takeover of the internet. Yet they suddenly have no problem applying much more aggressive and 1st Amendment violative rules to edge providers that are nothing like internet service providers.

And while I kept hearing people say that the Dobbs ruling showed that the Supreme Court will now ignore precedent to get to the results it wants, theres something different about the 5th Circuits ruling in the NetChoice case:

The cynical will point to things like the Supreme Courts decision inDobbs(which overturnedRoe v. Wade) and note that weve entered an era of Calvinball jurisprudencein which precedents are no longer an impediment to whatever endgame Federalist Society judges want. (The beloved comic stripCalvin and Hobbesintroduced us to the concept of Calvinballa sport in which the participants make up the rules as they go, never using the same rules twice.)

But in some ways this decision is even more ridiculous. There are pockets of the conservative world that have spent 50 years honing arguments to overturnRoe. The opposite is true when it comes to upending the First Amendment.

Indeed, the same forces that worked to overturnRoespent nearly the same amount of time working to strengthen andexpandjudicial recognition of the First Amendment rights of companiesfrom allowing a bakerto choose notto decorate a cake, to allowing companies to cite the First Amendment as a reasonnot to provide contraceptionas part of a health plan, and deciding that the First Amendment didnot allow Congress to barcertain types of expenditures in support of political candidates.

No matter how you feel about Masterpiece Cakeshop, Hobby Lobby or Citizens United, all three were cases driven by conservative arguments that relied heavily on the fundamental position that the First Amendment barred restrictions on corporate expression, including the right to not be forced to endorse, enable, or support certain forms of expression.

I pointed out how Ken White had once noted that there just wasnt a deep bench of conservative judges looking to take away 1st Amendment rights. And that actually held for a while:

As First Amendment lawyerKen White notedback in the comparatively innocent days of November 2016, regarding Donald Trumps call to open up our libel laws, You can go shopping for judicial candidates whose writings or decisions suggest they will overturnRoe v. Wade, but it would be extremely difficult to find ones who would reliably overturn [key First Amendment precedents.]

But, as if to just put a spotlight on their lack of actual principles, a huge part of the Republican establishment flipped on this point on a dime, solely to punish tech companies that they feel have become too woke. Its almost as if they only support the 1st Amendment for those who ideologically agree with them.

I mean, Justice Clarence Thomas, who almost certainly will vote to uphold the 5th Circuit, will be doing a complete 180 on his concurrence in Masterpiece Cakeshop. In that one, he argued the Supreme Court should have gone even further to make it clear that forcing a baker to decorate a cake for a gay couple would violate the bakers free speech, and dismissed the key cases the 5th Circuit relied on in the NetChoice case (FAIR and Pruneyard) as being wholly inapplicable, while highlighting the importance of Miami Herald v. Tornillo (the case that the 5th Circuit says is wholly different) on the 1st Amendment protecting the right for private operators to exercise control over the messages they send.

With Dobbs, everyone knew where it was going, because conservatives spent 50 years working up to it. But the 5th Circuit ruling lays bare how there are no principles among an unfortunately large segment of todays Republicans in both statehouses and courts. Its not about principles. It is entirely focused on punishing people they dont like.

Theres a lot more in the Daily Beast piece, but I wanted to highlight that one element that hadnt received as much attention.

Filed Under: 1st amendment, 5th circuit, andy oldham, clarence thomas, compelled speech, content moderation, hb 20, social media, texas

Originally posted here:
Conservatives Loved Expanding The 1st Amendment To Corporations Until Last Year. Wonder Why? - Techdirt