Archive for September, 2008

Minnesota Election Law, Meet First Amendment

September 30, 2008

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

September 20, 2008

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.

Larry Craig Case: Not Too Appealing

September 12, 2008

Joe Kimball has a nice step-back-from-the sensationalism piece on MinnPost about the Larry Craig legal fiasco.  Craig, as any Minnesotan with at least one functioning eye or ear knows all too well, was the Idaho senator who got ensnared in a sex-solicitation sting in a men’s room at MSP airport.

Larry Craig

Larry Craig

Craig, you will recall, mailed it in.  His guilty plea, that is.  When he tried to get the trial court to throw out the plea, the media circus at Hennepin County’s satellite courthouse across from Southdale was eclipsed only by the parade of Curious Georges and Georgettes who have made the bathroom next to Royal Zeno’s shoeshine a Minnesota tourist attraction.

This week, Craig’s case came before the Minnesota Court of Appeals.  Joe Kimball was there, along with about 20 other reporters, including one from the New York Times, which published a picture from inside the courtroom of Judge Natalie Hudson asking a question.  (Think cameras aren’t allowed in Minnesota courtrooms?  They are, particularly in appeals courts.)

As Kimball wrote, the media circus had left town, for the simple reason that Craig was not here.  Only non-salacious legal questions were before the court, such as whether a trial judge had to have reviewed the written guilty plea before it was accepted and whether it contained enough information to establish guilt beyond a reasonable doubt.  Boring stuff, when compared with the facts of the case involving wide stances and the claim that Craig had peered into the cop’s restroom stall with such intensity that the officer could see that he had blue eyes.

Even more boring is a fact that has not gotten play in the crush of media reports about this case.  The guilty plea was as much about contract law as criminal law.  We sign stuff all the time — sometimes with a pen when we refinance our houses, sometimes electronically when we click those ubiquitous “I have read and accept the legal terms” boxes.  Why should pleading guilty to this sort of crime be any different?

Bankruptcy Lawyers Have Rights, Too

September 8, 2008

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?

September 6, 2008

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)

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