- The U.S. Department of Justice
- The White House Press Office
- The National Security Agency and Department of Homeland Security
- The North Carolina General Assembly Police
- The Kansas Board of Regents
- Modesto Junior College
- The Tennessee State Legislature
- Wharton High School Principal Brad Woods
- Pemberton Township High School Principal Ida Smith
1) The U.S. Department of Justice
The Obama administration has been especially aggressive in pursuing legal action against those who leak classified information. Indeed, the current administration has pursued more prosecutions for leaks under the Espionage Act than all previous administrations combined. Admittedly, finding the proper balance between freedom of the press and effective law enforcement is a difficult endeavor, particularly when the crime is leaking classified information. The government surely has a legitimate interest in identifying those disclosing such information. Yet if the press is to fulfill its role as a government watchdog and report what it sees to the public at large, it has to be able to assure its sources of confidentiality.
To assist in maintaining a proper balance between these competing interests, the DOJ adheres to a number of procedural safeguards when an investigation involves members of the press. For example, before the DOJ seeks a subpoena for press phone records, it will first make “all reasonable attempts” to get the desired information from other sources and/or negotiate a release of the desired records with the organization itself. If these efforts fail and a subpoena becomes necessary, that subpoena will “be as narrowly drawn as possible” and “should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.”
In light of these guidelines, the Associated Press (“AP”) and the media at large were understandably taken aback when it was revealed in May 2013 that the DOJ had obtained two months’ worth of AP telephone records from communications giant Verizon based on subpoenas sought and issued in secret. The disclosed records included the cellular, office, and home telephones of individual reporters and an editor; AP office numbers in Washington, New York, and Hartford, Conn.; and the main number for AP reporters covering Congress.
Gary Pruitt, President and CEO of the AP, called the DOJ’s actions a “massive and unprecedented intrusion” into newsgathering activities. In a letter to the Attorney General, Pruitt charged that the subpoenas had “no possible justification” and were “a serious interference with AP’s constitutional rights to gather and report the news.” In Congress, Republicans and Democrats alike decried perceived abuses. House Judiciary Committee Chairman Bob Goodlatte (R-VA) argued that the DOJ’s investigation was “contrary to the law and standard procedure.” Rep. Zoe Lofgren (D-CA) stated that “the actions of the department have in fact impaired the First Amendment.” Ranking Democrat John Conyers (D-MI) said that he was “deeply troubled by the notion that our government would secretly pursue such a broad array of media phone records over such a long period of time.”
Deputy Attorney General James Cole, responded to the criticism in a letter stating that the subpoenas “were limited in both time and scope,” and issued only after a “comprehensive investigation.” Cole’s defense was somewhat undercut, however, by the fact that one of the subpoenaed phone lines had been shut down years earlier—the sort of detail one might expect a comprehensive DOJ investigation to uncover.
Just a few days after the AP subpoenas became public knowledge, it was learned that the DOJ had also secretly sought and obtained from Google two months’ of emails from the Gmail account of Fox News’ chief Washington correspondent, James Rosen regarding a report by Rosen containing information allegedly leaked to him by State Department advisor Stephen Kim. Unlike the AP phone records that only provided information about phone calls (i.e., the incoming or outgoing number, as well as the date, time, and length of calls), some of the information sought on Rosen involved the content of the reporter’s communications. The DOJ obtained two full days’ worth of Rosen’s emails, as well as all of his emails with Kim. The Washington Post wrote, “court documents in the Kim case reveal how deeply investigators explored the private communications of a working journalist.”
Because the DOJ was seeking the content of Rosen’s communications, it needed a court-issued search warrant, as opposed to a subpoena, which would only have required an allegation that the information sought was relevant to an investigation. Pursuant to the Privacy Protection Act, the government was required to establish that probable cause existed to believe the reporter had committed or was committing a criminal offense under the Espionage Act to which the needed materials related. To overcome this hurdle, the DOJ characterized James Rosen as a “criminal co-conspirator.” That fact bears repeating: The federal government labeled a reporter a criminal for merely doing his job.
What was truly shameful about the DOJ’s investigation was that it never actually considered Rosen a criminal co-conspirator; the accusation was merely a means by which to circumvent the requirements of the Privacy Protection Act. In a letter to Congress, Attorney General Eric Holder stated, “the government’s decision to seek this search warrant was an investigative step, and at no time during this matter have prosecutors sought approval from me to bring criminal charges against the reporter.”
The political backlash to the revelations of the AP subpoenas and the Rosen search warrant resulted in the Justice Department working with representatives of the press in early 2014 to draft new guidelines that tighten government access to journalists’ records. Although the DOJ is to be commended for the new guidelines, the protections they provide are not absolute and some significant exceptions exist that, if exploited, could result in a repeat of last year’s shameful actions. Should such temptation ever arise, we hope this 2014 Jefferson Muzzle will inspire the Department of Justice to fully consider the importance of a free press to our nation.
2) The White House Press Office
Today’s images include an 8” x 10” of the President making a 3-pointer on the basketball court.
In November 2013, a group of 38 media organizations came together to protest an Obama White House policy that dramatically limited professional photojournalists’ access to the President. According to these groups—among them, major broadcast and cable networks, newspapers such as The Washington Post and The New York Times, the National Press Club, and the Associated Press—journalists are routinely prevented from taking pictures of President Obama while he is performing his official duties because the White House categorizes such events as “private,” thereby baring media access. Then, adding insult to injury, the White House releases official photographs of these supposedly private affairs to millions of followers across various social media platforms.
Journalists have been butting heads with the Obama White House ever since press corps photographers were prohibited from documenting the President’s first day in office. In fact, during his first five years in office, the White House has permitted photography of President Obama alone inside the Oval Office only twice: during telephone calls in 2009 and 2010. Photos of the President and his staff working together in the Oval Office have never been allowed, even though such pictures were routine in the past.
The White House counters that it has released more images of the President at work than any previous administration. While that may be true, the journalistic value of such photographs is a product of their content, not quantity. Writing in The New York Times, the current director of photography for the Associated Press, Santiago Lyon suggested that these glossy official images are at best, visual press releases, and at worst, pure propaganda masquerading as news. By curtailing access to the Oval Office, the White House effectively ensures a visual narrative that “shows the president in the best possible light” and “propagates an idealized portrayal of events on Pennsylvania Avenue.”
For systematically rejecting independent journalistic access in favor of its own sanitized visual record, the White House Press Office has earned a 2014 Jefferson Muzzle.
3) The National Security Agency and Department of Homeland Security
The NSA: The only part of government that actually listens.
Dan McCall sells T-shirts, mugs, posters, and other products through the website Zazzle.com. Imprinted on his merchandise are humorous images and messages, often of a political nature. One of McCall’s designs juxtaposed an image of the National Security Agency’s (“NSA”) official seal with the words, “Spying On You Since 1952.” Another design featured an altered version of the NSA seal immediately above the words, “The NSA: The only part of government that actually listens.” The Department of Homeland Security (“DHS”) was also a target for parody, with McCall altering the official DHS seal to read, “Department of Homeland Stupidity.”
The NSA and the DHS were not amused. In 2011, both entities sent cease and desist letters to Zazzle.com threatening legal action if the website did not remove the three designs described above. The NSA claimed McCall’s designs violated a federal law making it a criminal offense to misuse the NSA trademark. DHS cited a federal law prohibiting the alteration of a seal of any department or agency of the United States. Essentially, these laws are aimed at preventing the public from attributing the messages of others to government agencies. In response to the cease and desist letters, Zazzle removed the contested products from its website for the rest of 2011, and all of 2012-13 effectively denying McCall any income from the designs during that period. Represented by Paul Levy of Public Citizen Litigation Group, McCall filed a lawsuit in October 2013 against the NSA and DHS asserting his First Amendment right to parody the two agencies in the manner that he had.
At the core of the First Amendment is the right to criticize the government without fear of punishment or retribution. Any law passed by the government must be interpreted to comport with that constitutional tenant. In addition, the landmark 1987 U.S. Supreme Court case of Jerry Falwell v. Hustler Magazine and Larry Flynt clearly established that parody and satire enjoyed full First Amendment protection. Here, the facts were such that the only plausible explanation for the agencies’ cease and desist letters was to suppress government criticism. No reasonable person would believe that the designs were affiliated with, or supported by, the NSA or DHS.
Apparently the Public Citizen lawsuit convinced the two agencies of the error of their ways and, early in 2014, they settled the lawsuit agreeing not to press charges based on McCall’s designs. Although it is commendable that the NSA and DHS recognized McCall’s First Amendment rights, it took them almost 3 years to do so and only after they were sued. Moreover, the laws under which they threatened McCall are still on the books. McCall’s attorney Paul Levy concedes that it remains an open question whether, and in what situations, the government might attempt to suppress other uses of official seals. In hopes that the NSA and DHS will fully consider First Amendment principles before sending any more cease and desist letters over the use of their official seals, the two agencies are awarded a 2014 Jefferson Muzzle.
4) The North Carolina General Assembly Police
Get the Funk out of here.
In early 2013, the North Carolina General Assembly passed a series of budget cutting bills perceived by some as unfairly targeting programs for the poor. In protest, the state chapter of the NAACP, members of the clergy from a variety of denominations, and groups of concerned citizens began staging demonstrations in the lobby of the General Assembly, the home of the state legislature. Although public access to the building is permitted, once inside, it is unlawful to disrupt the business of the General Assembly or to engage in disorderly conduct. By June, the demonstrations had become a regular weekly event known as “Moral Mondays” during which protesters would gather to sing, pray, and be arrested by the General Assembly Police. So routine were the arrests that protesters who wanted to be arrested were advised to wear green armbands so they could be distinguished from crowds of onlookers and supporters.
On June 10, the Charlotte Observer sent reporter Tim Funk to Raleigh to cover one of the protests. Funk covered faith and values for the newspaper and wanted to speak with clergymen from the Charlotte area. As Funk was doing so, General Assembly Police Chief Jeff Weaver warned the protesters to disperse or face arrest. That Funk was a reporter and not a protester was readily apparent; he had press credentials around his neck and a pad and pen in his hands. Yet when the police moved in, they went directly for Funk. “Chief Weaver came straight for me,” said Funk. “I remember that I kept saying, ‘I’m a reporter, I’m a reporter.’ But the chief kept coming at me, kept saying, ‘You’re under arrest; put your hands behind your back.’” Officers zip-tied Funk’s hands and led him to a detention center. “I told every uniformed person I saw that I was a reporter, there to cover the protest, not participate in it,” Funk said. “I also asked several times whether I could call the Observer. They said ‘no.’ I asked if they could call the Observer. ‘No.’ At one point, my cellphone rang. I asked if they could answer it or put it to my ear. ‘No.’” Funk was then locked in a detention cell for two hours before being taken before a magistrate and released.
Had the General Assembly Police arrested Funk because he was causing a disturbance, or even because they mistakenly took him for a protester, a Muzzle probably would not be warranted. But neither scenario existed here. A documentary film crew happened to be filming in the General Assembly on June 10 and caught Funk’s arrest on video. When Wake County District Attorney Colon Willoughby saw the video, he immediately dismissed the charges. “I saw a video of the incident and it appeared to me that he was there as a reporter, and not part of the protest. He was doing his job,” Willoughby said.
Mr. Willoughby is exactly right. It is the job of a free press to watch over the government and report on what it sees to the public at large. As Thomas Jefferson wrote, “An informed citizenry is the bulwark of a democracy.” In hopes that it will serve as a reminder of the importance of a free press to a democratic society, the North Carolina General Assembly Police Department is awarded a 2014 Jefferson Muzzle.
5) The Kansas Board of Regents
Toto, I’ve a feeling this isn’t the Kansas we know anymore.
On the morning of September 16, 2013, a lone gunman fatally shot twelve people and injured three others at the headquarters of the Naval Sea Systems Command inside the Washington D.C. Naval Yard. That same afternoon, University of Kansas associate professor David Guth logged into his personal Twitter account and sent the following message: “The blood is on the hands of the #NRA. Next time let it be YOUR sons and daughters. Shame on you. May God damn you.”
Almost immediately, the NRA and others offended by the tweet began calling for the University of Kansas to fire or otherwise reprimand Guth. Some state legislators reportedly stated that they would vote to discontinue funding the university if Guth was not terminated. The university administration resisted these calls stating, “Faculty have their own social media accounts and use those to express personal opinions, but those opinions do not represent the university.” After receiving a number of death threats, however, Guth was placed on administrative leave. He was later assigned to non-teaching duties for the rest of the fall and would remain out of the classroom for the spring 2014 semester because of a previously planned sabbatical.
In response to the controversy, the Kansas Board of Regents, a nine-member governing body that oversees the state’s six public universities and some 30 community and technical colleges, voted unanimously to approve a new social media policy that gives the chief executive officer of each institution discretion to discipline or terminate any faculty or staff member for “improper use of social media.” The policy goes on to state that “improper use” includes acting “contrary to the best interests of the university,” and having “a detrimental impact on close working relationships for which personal loyalty and confidence are necessary.
The Regents adopted this first-of-its-kind policy without consulting university leaders or faculty who, unsurprisingly, were not pleased. The president of Kansas State University wrote the Regents to inform them that “many members of the K-state family feel the policy seriously curtails both academic freedom and free speech.” The University of Kansas Faculty Senate requested that the Regents immediately rescind the policy until a new one could be drafted with faculty input. Reaction to the policy from national academic freedom advocates was also negative. The American Association of University Professors described the policy as “a gross violation of the fundamental principles of academic freedom that have been a cornerstone of American higher education for nearly a century,” while the Student Press Law Center warned that the “breathtaking” sweep of the regulation evidenced “an eagerness to control the off-the-clock lives of employees that is itself cause for suspicion.”
To their credit, in January 2014 the Regents created a workgroup of public university faculty and staff to review the Board’s new policy and make recommendations for changes. That report is to be presented to the Regents by April 16. It is very troubling, however, that the Regents refused to suspend their policy while the workgroup prepares its report. As a result, employees of three dozen educational institutions are left in the dark as to exactly what they can and cannot say on their personal social media accounts. Moreover, it is not at all certain that the Regents will adopt any or all of the workgroup’s recommendations.
Guth’s tweet may have been many things: intentionally provocative, ill-conceived, poorly-worded, even offensive. Nevertheless, it was also undeniably his personal opinion about a hotly debated political issue. The Supreme Court has consistently held that First Amendment rights are at their zenith when political speech is involved and nowhere is the vigilant protection of those rights more vital than at our colleges and universities. Social media is an increasingly common element of these educational environments, as Facebook, Twitter, and other platforms replace the syllabus and office hours as hubs of interaction among professors and their students. This presents new challenges for administrators, to be sure, but no modern university system can avoid the issue. The only question is whether or not their approach will be respectful of protected speech.
The Board of Regents could have issued a strong signal of support for the principles of academic freedom and free expression by suspending the current social media policy and pledging to implement the workgroup’s recommendations. Instead, 36 member schools are left sitting below a virtual sword of Damocles, waiting to see how—or even if—the Regents will remove it. This 2014 Jefferson Muzzle is therefore awarded to the Kansas Board of Regents in hopes that First Amendment principles will guide them in resolving this issue as well as those they may face in the future.