First Amendment

Leading First Amendment attorney Floyd Abrams said that if leaker Edward Snowden is ever brought into a criminal court in the United States, a lawyer for Snowden might very well persuade a jury that his disclosure of the level of surveillance conducted on the American citizenry was in the public interest.

"If Mr. Snowden comes home some day, we'll have some interesting cases involving him," Abrams said during a talk given at the New York Law School tonight.

However, Abrams said that the U.S. Supreme Court is much less likely than it was during the Pentagon Papers era to let judges question the judgment of the U.S. Department of Defense and other governmental agencies that releasing national-security information would do great harm.

Abrams has worked on such First Amendment cases such as the Pentagon Papers in which historical information about the United States' military involvement in Vietnam was disclosed by Daniel Ellsberg; defending Al Franken from a trademark lawsuit brought by Fox News Channel over the use of the phrase "fair and balanced;" and Nebraska Press Association v. Stuart, in which the Supreme Court held that prior restraints on media coverage during criminal trials are unconstitutional.

Further, while Abrams praised Snowden for releasing information on the surveillance of Americans, he questioned the point of exposing the level of American spying on foreign leaders. 

While an ardent First Amendment proponent, Abrams said that he never thought that speech by hate groups like the Nazis has done any particular good. "Some speech does some real harm, but it's worth the price," he said.

Abrams also said First Amendment challenges could be successful in the right cases against  "ag gag" laws, which criminalize the undercover trespassing and subsequent exposure of practices at any facilities involving animals. The ideal test cases would be those involving journalists publishing information from their sources about alleged wrongdoing, he said. Journalists do not have the right to trespass, but the "statutes are so obviously designed not to protect property but to protect against revelation of confidential information," he said.

New York Law School Professor Nadine Strossen, who is a leading First Amendment advocate in her own right as the past president of the American Civil Liberties Union, said she would like to see the standards governing content for broadcast television changed.

Cases that were primed to challenge the harsher regulation that broadcast TV faces from the Federal Communications Communication over indecent material ended up not going anywhere, Strossen said. Those cases didn't involve "toplessness" or "bottomlessness," but four-letter swear words, she said. She also noted the irony that profanity like "shit" and "fuck" could be uttered in the highest court in the country but not on broadcast television. "The Supreme Court can say it but you can't say it over the air," Strossen said.

Abrams, who has represented many media organizations in his career, said that journalists are "best as truth-gatherers" and detecting when people are lying. But one of the greatest weaknesses of media organizations is trivializing important matters that the public is capable of understanding, he said.

There is a presumptive right under the First Amendment to have access to civil contempt proceedings, the Second Circuit ruled today.

Circuit Court Judge Gerard E. Lynch, writing also for Judges Susan L. Carney and Raymond J. Lohier Jr. on the civil contempt proceedings issue, said the U.S. District Judge Arthur D. Spatt of the Eastern District of New York erred when concluding the First Amendment right for the public to have access to a transcript of civil contempt proceedings was outweighed by the concern that “opening contempt hearings to the public would put district courts in the absurd position of either maintaining the secrecy of the underlying materials or undermining their own protective orders.”

The circuit applied the “experience-and-logic” approach, or whether the documents have historically been open to the press and general public and whether public access plays a significant role in the functioning of the particular process in question.

“Under the experience-and-logic approach, the civil contempt proceedings, which carry the threat of coercive sanctions, implied First Amendment values,” Lynch said. “As we have noted in the related context of the common law right of access, the need for public access to court proceedings is grounded in the ‘need for federal courts … to have a measure of accountability and for the public to have confidence in the administration of justice.’ This observation applies with special force in the context of contempt proceedings, which, although civil in nature, carry the threat of coercive sanctions and seek to enforce the court’s own orders.”

The holding arises out of a case in which a member of the Nassau County Legislature was ordered to pay $2,500 for allegedly revealing aspects of an internal affairs police report on how law enforcement in Nassau County handled the protection from abuse orders entered against a confidential informant who ended up murdering his daughter.

According to the opinion, legislator Peter Schmitt said in a televised editorial that the officers mentioned in the report should be ashamed of themselves because “’mandatory arrests were called for and not performed, giving a cell phone to the prisoner when he was behind bars and allowing him to call the victim 35 to 40 times, and on and on and on,’” according to the main opinion.

Members of the county legislature were allowed to review the report as part of their decision-making on whether to approve a $7.7 million civil settlement in the underlying case, but the legislators were subject to a protective order, the opinion said.

When Schmitt was brought into court to face civil contempt charges, Spatt closed the courtroom for much of the proceeding, including for the testimony of the supervisor of the internal affairs unit that wrote the report.

Three-and-a-half years ago, Sharon Dorsett filed a civil rights lawsuit over the stabbing death of her daughter Jo’Anna Bird at the hands of Leonardo Valdez-Cruz, her ex-boyfriend and Bird’s father, according to the opinion. Despite several orders of protection, Dorsett alleged that “negligently lax supervision resulted [from Nassau County law enforcement] at least in part from Valdez-Cruz’ status as a police informant.”

The Nassau County Police Department’s Internal Affairs Unit produced a 712-page report on the issue, and when Dorsett’s counsel sought to release a redacted version of the report to the press, a preliminary injunction was entered against its release.

Lohier wrote a concurring opinion on the issue of the sealed internal police report. While all three judges agreed that the media-intervenors were not entitled to the report, they had different rationales for reaching that conclusion.

The lead opinion said the district judge erred in relying on a magistrate judge’s finding that there was good cause for a protective order limiting access to the report. But the report was not entered into the record during the contempt hearing, and the report did not get raised to the level of judicial document, Lynch said. There is no First Amendment public right of access to the report if it is not a judicial document, the judge said.

In contrast, Lohier said in a concurrence that the report was a judicial document. But under the logic-and-experience test, the concurring judge said that the report should not be disclosed publicly because internal police investigations are historically not made public and “the public’s interest in scrutinizing the district court’s contempt determination is only very minimally furthered by releasing the report, particularly since the hearing transcript will now be made public.”

Newsday and News 12 Networks intervened in the Newsday v. County of Nassau case.