“Press” vs. Public: Does It Matter? Yes, In The Minnesota House

A showdown is brewing between the Minnesota House of Representatives and nontraditional media regarding who gets to record House proceedings.  And if this goes to court, the case could be groundbreaking for helping to determine who is the “press” and who is the “public,” and does it (or should it) really matter anymore?

Here’s the deal.  The House is assigning authority to its “Sergeant At Arms” to determine who gets to make audio and video recordings anywhere our elected House members do “business.”  This would include not only the House chamber, but also committee rooms, and arguably, I would think, “press conferences” and anyplace an elected House member shows her or his face.

A copy of the “application” is here.  Predicably, it requires applicants to identify their employer, whether they’re a member of a recognized journalism group or association, and the “long-term nature of your assignment.”  In other words, it licenses existing and largely “mainstream” media.  Also, stunningly, it imposes a prior restraint by banning applicants from “videotaping audience members.”

The reason behind all this?  For the “safety and security of all.”  Really?  How in the world does restricting audio and video recordings in a publicly accessible place affect safety and security?

The current and evolving generation of citizens journalists are understandably going nuts over this.  My buddy Jason Barnett at The UpTake is helping to lead the charge.  He talked about it on Channel 4 recently, but at a time when most Minnesotans are either in church, at brunch, or sleeping in.  (Channel 4 video here.)

Consume The UpTake’s coverage and read their take on the issue here.  They’re right on point.

So what precisely are our elected representatives scared of?  It is not at all clear, and the purported concerns over “safety” and “security” are wholly speculative.  Warning: Time and time again, courts have invalidated laws based on speculative fears when, as here, freedom of expression is at issue.

This appears to be yet another attempt by Minnesota officials to restrain expression in the name of keeping order and upholding morals.  These were the reasons behind our Legislature’s nineteenth century ban on newspapers publishing true details of public executions, its World War I-era laws targeted at anti-war protesters, and the horrible Public Nuisance Law of 1925 that authorized the state to shut down “nuisance” newspapers.  Amazingly, it was the Public Nuisance Law and the Minnesota Supreme Court’s refusal to invalidate it that finally led the United States Supreme Court to say in Near v. Minnesota that enough was enough, that the First Amendment applied not only to the federal government but also to the states.

Think our state is a place where everyone is above average when it comes to free expression?  Think again.  Near v. Minnesota is the reason why we have freedom of expression (not just freedom of the press) from coast to coast.  In the words of a Lutheran confirmation student, this is most certainly true.

Is Minnesota on the cusp of another legal revolution, one that would be expensive for state taxpayers?  Stay tuned.

An Encouraging SLAPP

On Tuesday, the Minnesota Court of Appeals released a decision affirming that when someone speaks with an intention to change the way government operates, the law will try to protect the speech even if it borders on being defamatory.

The case arose in Marshall County in southwestern Minnesota where a resident whose land was “taken” by a governmental “Watershed District” sued but then settled the lawsuit.  The settlement required the landowner and the District to “endeavor to establish a positive and collaborative relationship” with each other.  A year later, the District sued the landowner alleging that he had breached the agreement by interfering with funding, making statements with intent to harm the project, and filing requests for public documents.

The landowner sought to have the lawsuit dismissed and wisely cited Minnesota’s “anti-SLAPP” statute, a little-known and little-used provision that requires courts to dismiss lawsuits involving “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action.  SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Anti-SLAPP statutes generally work to ensure that ideas freely flow when the ideas involve government.  California has led the way in fighting against lawsuits of this type, and in 1994 Minnesota’s anti-SLAPP statute took effect.

But barely anyone knows the law is on the books.

In Marshall County, the trial court let the lawsuit go forward, but on Tuesday the Minnesota Court of Appeals held that the trial court had to dismiss the case unless the District could demonstrate by “clear and convincing evidence” that the anti-SLAPP provision did not apply.

It remains to be seen whether the governmental entity can and will be able to do that.  In the meantime, though, the Court of Appeals has provided an important reminder that when one speaks out against government, the law should — and will — offer protection.

Judging From Campaign, Little To Worry About

Nonlawyer friends in Ramsey County have been asking me about what to look for in the unusual race for a county judgeship.  The race is unusual because judges usually step down in a way that permits the governor to fill vacancies, and then the appointee then gets to stand for election as an incumbent (usually unopposed).  That did not happen this year, so Gail Chang Bohr and Howard Orenstein are squaring off for a single seat on the Ramsey County bench.

I have read some profiles and examined the candidates’ campaign materials, and from my perspective we cannot go wrong.  Bohr’s web site and Orenstein’s web site make it clear that while the candidates come from vastly different legal backgrounds, both are qualified and would bring much (but different things) to the judiciary.

Last week, the Pioneer Press published a nicely done profile on the candidates, and what struck me in the piece and in the candidates’ campaign materials is the degree to which both have taken the high road, a welcome respite from the nastiness that has permeated the U.S. Senate race and some of the presidential race.

In my mind, this race has alleviated fears from the fallout of the decision in Republican Party v. White, where in 2002 the United States Supreme Court wielded the First Amendment to invalidate a Minnesota rule that kept judicial candidates from stating their views.  As Justice Scalia made clear in his classic, hard-to-disagree-with style, Minnesota is free to keep electing judges, but it may not keep candidates “from discussing what the elections are about.”

Things could get nasty in the future, of course, and an attempt is under way to get rid of judicial elections as we know them.  For now, let’s hope that others follow the lead of (Judge?) Bohr and (Judge?) Orenstein.

Free Elections and (Sort Of) Free Speech

Think free elections leave room for absolute freedom of speech in Minnesota?  Think again.

Yesterday I mentioned Chapter 211B of Minnesota Statutes and encouraged anyone who cares about free speech to take a look.  A look will reveal that the statutes, most of which date to 1988, impose a variety of restrictions on who can say what in various “campaign materials.”  Dear blog reader, the statutes are in dire need of a tuneup.  Read on.

The very first section of Chapter 211B contains a definition that is oh so, well, 1988.  The section defines “campaign material” as “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by the news media.”  So the restrictions apply to yard signs, brochures, direct mailings, podcasts, and probably my blog and others with a thousand times more readers, but not the Duluth News Tribune or KARE-TV.

Another stale exception is in section 211B.06, which makes it a crime to intentionally prepare or disseminate campaign materials known to be false unless you happen to be a “person or organization whose sole act is, in the normal course of their business, the printing, manufacturing, or dissemination of the false information.”  Printing?  Really?

And then there’s this one, in section 211B.11: “A political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.”  My guess is that the violators will number in the thousands on Tuesday.  Maybe the tens of thousands.  Break out the bread and water, because according to section 211B.16:  “A county attorney may prosecute any violation of this chapter.”

Just last year the Minnesota Court of Appeals upheld parts of Chapter 211B under the First Amendment on the theory that, in the court’s words, “the liberty of speech is not an absolute right” and that “a state’s police power permits a state to punish an abuse of the freedom of speech.”  The authority for those statements was the landmark case of Near v. Minnesota, one of the most important free-speech cases from all time.  Trouble is, the case is a landmark because it marked the first time ever that the United States Supreme Court struck down a state law — a Minnesota law – that restricted speech.

Near v. Minnesota does not provide support for a law that makes it a crime to wear a button at a polling place.  Anything but.  And it is time for the Minnesota Legislature to recognize that voters are not reliant on Big Media anymore.

Chapter 211B says these signs (on my block) can be up from August 1 until 10 days after the election. But after that, the City of St. Paul could order that they come down. (Photo by Steven P. Aggergaard)

Expect To See Exit Pollsters

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

Minnesota Election Law, Meet First Amendment

Big Media filed a big federal lawsuit against the State of Minnesota yesterday challenging a Minnesota law that prohibits anyone other than voters and election officials from being within 100 feet of a building where voting is taking place.  The law was changed in April so that the 100-foot buffer zone is to be measured from the building’s door, not from the room where the balloting is actually taking place.

The change, according to ABC News, the Associated Presss, CNN, CBS, FOX, and NBC, violates the First Amendment because it prevents Big Media from exercising its constitutional right to perform exit polls by asking Minnesotans who they just voted for and then reporting the results before the votes are actually counted.

Hmm.  This is a tough one for me.  I agree that anyone, Big Media included, should generally have the right to ask questions and then tell someone the answers.  I also agree that elections are a Big Deal, particularly THIS YEAR, and that any act that might dissuade any voter from casting any ballot is to be forbidden.

The State of Minnesota has not had opportunity to file a response, but when it does, I wonder whether the Attorney General’s Office will dig up recollections of 2000, when famously inaccurate exit polls led some in the media to call the State of Florida for Gore, then for Bush, then for “too close to call.”

As luck would have it, I was on the Big Media front lines that night, squirming through my shift as front-page news editor at the St. Paul Pioneer Press.  The AP had called the presidential race for Bush, and we had a page ready to go with “BUSH WINS” streamed across the top.  Then, at the last second, around 1:15 in the morning as I recall, the AP sent a bulletin stating that the exit polls had been wrong, and that the race was too close to call. 

So I changed our headline on the fly and averted disaster.  The Star Tribune, though, did not, and alas, a few thousand papers escaped the building with “BUSH WINS” across the top.  One of them landed on my doorstep!

I do not pretend to have the right answer to this one.  Thankfully, a federal judge will, and soon.

Off the Hook

True to form, the St. Paul City Attorney’s Office says it won’t prosecute “journalists” who were caught in the web of arrests outside the Republican National Convention.  That’s the right call.  But, as I predicted, the call was made for the wrong reasons.  As I wrote a couple weeks ago:

Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

Jane Kirtley, a media ethics guru at the University of Minnesota and former head of a tremendous outfit called the Reporters Committee for Freedom of the Press, was quoted as agreeing with the idea that defining who is and how is not a journalist is tricky business.  She’s exactly right.

The First Amendment was not adopted to protect journalists.  It was enacted to protect free expression for everyone.  True, the First Amendment specifically ensures a free press, but I simply do not believe that “the press” had the same meaning in 1791 as it does today.  Early Americans wanted to make sure that the people who operated printing presses and therefore enabled large-scale free expression would not be subject to the burdensome licensing schemes prevalent in Europe.  The First Amendment’s drafters did not intend to extend special privileges to massive for-profit media conglomerates or even to bloggers for that matter.  Rather, they sought to protect the rights of anyone who had something to say, protesters included.

As for those protesters, I completely agree that some at the RNC crossed the line.  As I said previously, those who participated in the near-riots committed criminal acts.  But the large number of onlookers who merely sought to express themselves, to watch people express themslves, or to document people expressing themselves committed no crimes.  Cases closed.

Bankruptcy Lawyers Have Rights, Too

You know those bankruptcy lawyers who advertise on TV or anywhere else?  In Minnesota, they are now required to state in their ads that they “help people file for bankruptcy relief,” or something to that effect.  But those same lawyers are now free to advise soon-to-be-bankrupt clients that maybe they should take on more debt.  So saith the Eighth Circuit Court of Appeals in a First Amendment case from Minnesota that was released Thursday.

I first blogged about the case a year and nine months ago.  (Yes, that’s how long appeals take.)  It was brought by the lawyers at Milavetz, Gallop & Milavetz, familiar names to anyone who watches Twin Cities TV. Back in December of 2006, Judge James Rosenbaum ruled that the federal statute at issue violated the First Amendment because the “sweeping regulation goes beyond whatever problem it was designed to address.”  As I said at the time:

It’s pretty unusual for federal judges to strike down laws in such sweeping fashion with the First Amendment. The government doesn’t take losses like this lying down, so we’ll see what happens on appeal. A bankruptcy blogger at www.creditslips.org opined: “My guess is that the Department of Justice will appeal, and my guess is that they will lose at the appellate level.”

Well, I was right and the bankruptcy blogger was partially right.  According to the Eighth Circuit’s 2-1 decision, it is a First Amendment violation to prohibit a lawyer from advising a soon-to-be-bankrupt client about the value of taking on more debt.  Maybe refinincing a home or buying a car to get to work is in everyone’s best interest, saith the court.  Good point.

But on the advertising restriction issue, the government won.  According to the Eighth Circuit, requiring attorneys “to disclose factually correct statements on their advertising” does not violate the First Amendment.  I am not sure I agree.  Anytime the government compels anyone to say anything, that is a problem.  But apparently not to the Eighth Circuit.

RNC-ya. Whew. Now What About The Journalists?

The Republican National Convention delegates have left St. Paul, except for those who live around here.  The so-called “anarchists” are gone, too, except for those who live in Minnesota either permanently (in parental basements?) or temporarily (in the Ramsey County Jail).  What a shame that a handful of rabblerousers felt need to step outside the cloak of the First Amendment to damage property while engaging in otherwise legal, valid, and need-to-be-heard concerns about our country and about the party currently controlling the White House.

Troublingly, journalists — some from the mainstream media, some not — were arrested along with the vandals.  The arrests came while the journalists were engaging in their First Amendment rights to gather news.  I wore a suit to work yesterday in case I had to go to court to try to get a reporter for The Uptake sprung from policy custody.  Luckily, she was released around 2:30 yesterday morning, and I never had to don a tie on a Friday.

Now what?  Who gets prosecuted for criminal activity, and who does not?  As Police Chief John Harrington was quoted in this morning’s Pioneer Press, “the media isn’t exempt from (a) legal order.”  True.  According to the paper, Harrington has indicated that now a “policy decision” (the newspaper’s words, not Harrington’s)  must be made to determine what to do with the journalists who “were simply caught up in the middle.”

A policy decision.  Oh boy.   Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

This is a topic I have written on several times before, most often in the context of “shield laws” that generally protect journalists from having to reveal confidential sources.  My views put me at odds with many of my journalist friends, but here is how I see it:

Anytime government is authorized to determine who is or is not a journalist, government essentially engages in a licensing scheme by awarding increased First Amendment rights and protections to a select group of media interests, which, generally, garner substantial revenue from corporate advertising.  Licensing schemes have their roots in England, where the king used to decide who could and could not print newspapers.  The schemes were among the travesties that so many of our ancestors were eager to escape, and are a big reason why we have the First Amendment in the first place.

In light of that history, St. Paul police and prosecutors need to tread with caution in coming days.  Charges should be dropped not because someone was a journalist, but because authorities lack clear probable cause that any journalist committed a crime related either to damaging property or inciting (as opposed to documenting) a potential riot.  Pushing Dumpters into police cars is a crime.  Recording the worst civil unrest in St. Paul history is not.  Simple as that.

Citizen journalist, or not? Hmm ... (Photo by Steven P. Aggergaard)

Warning: Puppet Possession Is A Crime During RNC

The search warrant from one of yesterday’s raids involving would-be Republican National Convention disrupters should cause all of us pause.  The warrant identifies “components” that could be used to make Molotov cocktails and “improvised explosive devices” as among the suspected contraband.  OK, that’s troublesome.

But the warrant also lists maps of downtown St. Paul, spray paint, nails and screws, police scanners, computer printers, and, um “hollowed out puppets,” just to name a few.  And it goes on to state that “the possession of the property described above constitutes a crime,” that the property “was used as a means of committing a crime,” that it “constitutes evidence which shows a crime has been committed,” and that it is “in possession of a person with intent to used [sic] such property as a means of committing a crime.”

How is possessing a hollowed-out puppet, even one kept next to components that go into the common Molotov cocktail, evidence that a crime has been committed?  Under this line of reasoning, possessing a gun in your home could very well constitute a crime, and I doubt many of the conventioneers in town would stand for that.  Rounding up guns in people’s houses on the theory that a crime might be committed is something that a, um, puppet dictator would do.

News reports state that local police ingeniously infiltrated the alleged anarchists’ hangout and gained valuable insights into their disturbing plans to disrupt the Republicans’ First Amendment right to assemble.  Good job!  But why did the police not wait for one of the anarchists to step outside their hangout, hollowed-out puppet and Molotov cocktail in hand, before seizing the persons and property?  Taking affirmative steps toward RNC disruption would, it seems to me, constitute a crime.

So be careful this week.  Keep the lawnmower gasoline away from those old pickle jars in the garage.  And any hollowed-out puppets in the basement should promptly be filled with sand.