Standing Rock protesters dealing with pepper spray (
by Steve Timmer
Oct 15, 2016, 1:00 PM

And Amy’s not a journalist, either!

And yet another update (10/19): The instances of people trying to divide the media from everyone else and decide who’s a journalist continue apace. Here’s constitutional lawyer Eugene Volokh in the Washington Post on CNN’s Chris Cuomo:

“Also interesting is, remember, it’s illegal to possess these stolen documents. It’s different for the media. So everything you learn about this, you’re learning from us.”

Ah, isn’t it lovely to be so special, so specially immune from the law? Except it’s not at all different for the media. The First Amendment offers the same protection to the media as to the rest of us, including when it comes to possessing or distributing illegally obtained material (so long as you weren’t involved in the original illegal hack or interception or leak). Indeed, in the 2001 Bartnicki v. Vopper decision, the Supreme Court rejected even civil liability for distributing illegally intercepted cellphone calls, and expressly refused to distinguish the media from others . . .

This is a terrific piece, by the way, partly because it cites my favorite First Amendment case, Times against Sullivan.

Update (10/17): A judge in North Dakota finds no probable cause to charge journalist Amy Goodman with the crime of riot. A prosecutor there originally charged Goodman with criminal trespass, but soon figured out that wouldn’t stick. In a clear case of trying to find something else, he chose riot. (Perhaps multiple counts of loitering are next.) Goodman’s lawyer put his finger on it:

“These shifting charges were a transparent attempt by the prosecutor to intimidate Amy Goodman and to silence coverage of the resistance to the pipeline,” said Reed Brody, an attorney for Goodman. “Fortunately, these bully tactics didn’t work and freedom of the press has prevailed.”

o O o

Readers will remember the temporary harassment restraining order obtained by Sandra Grazzini Rucki against Michael Brodkorb. I wrote about it a little here, and well, it was in the papers, too. (See the link in the LeftMN story.)

The temporary ex parte restraining order was dismissed because the judge found that Sandra Grazzini Rucki didn’t live in Washington County. She was living in jail, of course! Because SGR was in jail, there couldn’t even be a hearing on the order, so Michael’s lawyers didn’t present — didn’t have to — First Amendment arguments that Michael’s reporting was protected free speech and press activity.

Grazzini Rucki’s irrepressible lawyer, Michelle MacDonald, says that she’ll fill out another application for a restraining order in a few weeks when SGR can again feel the sun on her face.

This issue of shooting the messenger when you don’t like the message plays out time and time again. There is a new Matt Taibbi article on the Rolling Stone website describing how Amy Goodman has been charged with criminal trespass for reporting on the corporate violence surrounding the pipeline protests at the Standing Rock Sioux Reservation in North Dakota. Why?

Because she was not acting as a journalist.

I wish I could tell you that I, or the prosecutor, was making that up. I guess the problem is that Amy Goodman was not being sufficiently fair and balanced in her reporting. Too much about dogs and pepper spray. And she didn’t have a badge from one of the big networks.

The prosecutor didn’t charge her with being factually wrong in her reporting, though. (Not that it would matter if she was, unless she was being malicious.)

[Update: The charges now are changed to riot.]

Some of you will recall that Amy was also arrested in St. Paul during the Republican National Convention in St. Paul in 2008 for criminal reporting, or something like that.

It is very troublesome when private individuals or companies marshal the legal system to shut down expression they find objectionable. When somebody tries to do it to NBC, or the New York Times, or the Strib, they can fight, and sometimes bite, back. But it is harder for Michael Brodkorb, or Amy Goodman and Democracy Now to respond.

That is why a judge in North Dakota, or one looking at another temporary harassment restraining order before a hearing, needs to give the case a good, early look when the First Amendment is involved.

Update: And sometimes even the media get into the act. There are examples in the Taibbi piece. There was also an editorial in the Strib today, Saturday, October 15th, huffing and puffing about the hacks and leaks of emails from the DNC and the Clinton campaign. Here’s the first graf:

Russian government complicity in computer hacking of the Democratic National Committee and other political institutions and individuals is a direct attack on our democracy. In response, the U.S. government should ramp up sanctions to make it clear to Russia — and to any other country considering similar tampering — that this is unacceptable.

As Glenn Greenwald observes, however, virtually all leaked information is stolen. (The Greenwald piece is terrific, by the way.)

There were a couple of things missing from the editorial.  First, any proof that it was the Russians who were responsible. People think they were, and the government says so, but I always thought that the media were supposed to be skeptical of what the government told them.

Second, there was no statement, and no credible claim anywhere, to my knowledge, that anything in the Wikileaks disclosures were wrong. So if I understand this correctly, the truth is attacking democracy, at least according to the Strib.

This is amazing.

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