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Wednesday, October 10, 2018

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Posted by Howard Wasserman on October 10, 2018 at 06:07 PM in First Amendment, Howard Wasserman | Permalink


Wasserman , you may get some ideas or inspiration by reading BRANZBURG v. HAYES , here :


It is about a case of one reporter asserting privilege and free speech right ,concerning the disclosure of sources or informants at the time . That issue differs from one state to other , and the Supreme court by the way , asserted , that it wouldn't intervene ( privilege in that case denied , at least concerning testimony in front of a grand jury ) .


Posted by: El roam | Oct 10, 2018 8:52:02 PM

Not true. While the primary focus is on education, they are at least making themselves heard (if not litigating) on issues outside of education.

Posted by: Howard Wasserman | Oct 10, 2018 8:35:09 PM

"often on people more vulnerable than Senators. I am curious if and where FIRE"

To be fair to FIRE, the "E" in their name refers to "education". So I don't know why they would care one way of the other about "land protesters" or "reproductive health clinic protesters" unless those people are protesting on college campuses. FIRE isn't a general free speech advocacy organization.

Posted by: James | Oct 10, 2018 8:05:18 PM

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