AOJ and Sunshine Week (Spring-Summer 2016)
The following material is preserved from the original AOJ website as of December 2016 and should be considered historical.
Will the First Amendment survive the info age?
Five questions and 9 hot-links
By Anders Gyllenhaal
As Apple tries to fend off government demands for access to encrypted iPhone content, the company is leaning on free speech arguments as a key part of its defense.
With no fewer than 10 lawsuits filed this year against net neutrality rules, both sides claim First Amendment support in this long-running dispute over the federal regulation of Internet service.
This is Sunshine Week in the U.S., when news organizations put a spotlight on the public’s right to know and size up the state of government openness and access to public records.
This year, we should add a more sweeping question to the list: How will the First Amendment navigate the dramatic changes in information technology?
Complicated disputes are popping up in both predicable and surprising places.
Cases moving through the courts range from whether Facebook “likes” and Twitter posts are protected speech (both are for the moment) to what individual First Amendment rights should be granted to businesses (they‘re steadily expanding).
The mere definition of free speech is getting clouded: Are video games a kind of speech? What about computer-driven content like searches and automated stories? Put another way, can iPhone’s Siri claim First Amendment rights if she somehow offends or libels you?
Free speech standards shaped over the past half-century are colliding with modern privacy concerns. Protests at a series of campuses the past year pitted press rights against the demand for “safe places’’ where students can avoid conflicting views. There’s growing support for “right to be forgotten’’ laws that allow people to erase pieces of their past or otherwise rewrite digital history.
When a humorist quickly gathered 50 signatures calling for repeal of the First Amendment as a joke a few months ago at Yale, nobody should have been laughing.
Five key questions:
The First Amendment has survived plenty of change in 225 years. Speech, press and expression rights have been expanded and hardened as they’ve adapted to waves of technology, including the telegraph, print, radio and television.
Those who follow the topic most closely, though, say the information age started a whole new era. Here are key questions likely to shape the future of the First Amendment:
- How will the Internet alter free speech practices?
There’s still a lot of unsettled law about how speech and expression play out in a Facebook world.
Scholars say rules taking shape will generally extend existing standards to the Internet. The challenge will be figuring out when speech is altered by the Internet’s speed and reach and how to handle all the new content types at a time when anyone can be a publisher.
“The Internet amplifies everything,’’ said Thomas Healy, a Seton Hall law professor and author of “The Great Dissent,’’ on Oliver Wendell Holmes’ free speech evolution. “It amplifies expression. It makes it more powerful, more dangerous, more offensive. Those things have to be taken into consideration.’’
Early court decisions hold that data-driven communications, such as computer-assembled news and Google searches, are indeed protected forms of speech. So is computer code itself, which is the basis of the First Amendment argument that Apple is making for refusing to crack open theiPhone of the San Bernardino mass shooter.
- Who’s advocating for the public’s interest?
We should watch which players and what forces are trying to influence the rules as a changing of the media guard takes place.
The newspaper and broadcast companies that championed speech and press rulings of the 20th century don’t have the power or financial strength they once did. The dominant technology companies have not shown that same kind of stewardship of the First Amendment.
John E. Finn, the Wesleyan government professor who taught the Great Courses series on the First Amendment, was speaking for his peers when he said, “I worry about the lack of well-funded institutions advocating for openness.’’
- Who controls how information moves?
Just as important as who creates content will be who distributes it, which is why the net neutrality rules approved by the Federal Communications Commission last year and now under appeal drew comment from a who’s who of tech companies, from Netflix and Google to Comcast and Verizon.
Current rules require service levels and rates to be the same for all. Internet providers say that curbs their business options, while content creators say reversing this would give the Internet’s utilities too much power over the marketplace and lead, for instance, to download speeds based on your willingness to pay.
While both sides claim First Amendment rights, self-interests show through in their positions. It’s also becoming clear how much control already is in the hands of those who provide devices, pipelines and software that determine everything from what you find when you search to whose postings you see on Facebook and LinkedIn.
“The people who develop our technologies,” said Cindy Cohn, director of the Electronic Frontier Foundation, which tracks digital rights, “are having a bigger and bigger role in all these things.’’
- What will expanding business rights mean?
A series of First Amendment rulings sought by private corporations has freed them from limits in such areas as advertising, ingredient listings and political contributions.
About half of First Amendment rulings today focus on corporate rights -- a big change from previous decades, according to a survey of a half-century of court decisions by Harvard law professor John Coates.
Some say that the expansion of any speech rights serves all comers. Others say this shift goes against the intent to protect the rights of citizens against powerful government and corporate interests.
- And finally, where do you stand?
Here the news is encouraging: The amendment’s simple, 45-word summary covering religion, speech, press, petition and assembly is woven into the American civil fabric.
While percentages rise and fall slightly with current events, polls consistently find overwhelming support and admiration for the First Amendment from a vast majority of the population. Unlike almost any other topic in public life, those sentiments cut across political, ethnic, age and economic lines.
Two-thirds of the world’s population lives without religious and press rights, and many countries, from China to Cuba, are using technology to suppress rights. This makes the American model an even greater beacon if we succeed in using technology to extend freedoms.
“We have the gold standard,’’ said Alberto Ibarguen, director of the Miami-based Knight Foundation, which funds media innovation around the world. “It’s our responsibility to make sure we maintain that.’”
The First Amendment did not find its place at the core of our rights without many struggles over two centuries. Sunshine Week is a good time to remember there are fresh battles ahead.
Anders Gyllenhaal is vice president for news at McClatchy and can be reached at Agyllenhaal@McClatchy.com
Sunshine Week and in-article links:
- Main Sunshine page
- Sunshine Week toolkit, free content
- Thomas Healy
- The Great Dissent
- John Finn:
- Net neutrality rules approved by the FCC:
- Electronic Frontier foundation:
- John Coates:
- Knight Foundation:
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Adapted, by permission, from the American Society of News Editors site: http://asne.org/content.asp?pl=15&sl=428&contentid=428
Open Government: Questions for federal candidates
Government transparency and secrecy have played a major role in the most salient political issues of this still nascent election cycle, ranging from FOIA requests on Flint’s water crisis, debates on NSA whistleblower Edward Snowden, to questions on campaign finance. Although these issues are raised frequently in the midst of a high-profile controversy, candidates are rarely asked about their underlying open-government beliefs and policies. Less than one-third of Americans view elected officials as “honest,” and yet transparency is mostly absent from the larger discussion.
ASNE and OpenTheGovernment.org have drafted open-government-related questions below that can be asked of all candidates for federal office. Our hope is that they will be used broadly, by editorial boards, reporters covering the 2016 campaigns and interested members of the public who have an opportunity to speak with candidates. Transparency is vital for public accountability, and it needs to be a part of the greater conversation on democracy and open government.
The list, which consists of questions related to federal open-government issues, is most relevant to candidates for president, United States Senate or the United States House of Representatives. However, we also encourage those interested in transparency at the state level to use the questions as a model when speaking with candidates for state or local office.
Contact information for ASNE and OpenTheGovernment.org is listed, as well, along with contact information for individual subject-matter experts. Please do not hesitate to reach out to any identified individuals for additional information.
Questions for 2016 Candidates for Federal Offices on Government Accountability, Public Disclosure and the Right to Know
- Patrice McDermott, executive director (firstname.lastname@example.org)
- Kevin Goldberg, legal counsel (Goldberg@fhhlaw.com)
- American Society of News Editors
- Chris Trejbal, open government chairman (email@example.com)
- Association of Opinion Journalists
During this election season, as candidates are selected for party nominations and campaigning for federal offices, the following questions are important for understanding where candidates stand on pivotal policy issues relating to government openness and accountability. As a coalition of public interest organizations committed to promoting government openness and accountability, we urge your editorial board to circulate these questions and encourage journalists to present them to candidates on the campaign trail.
- Transparent policing and accountable law enforcement:
There is currently no comprehensive federal program to compile data regarding the incidence of law-enforcement-involved violence. Given the national interest in this issue, how would you support measures to improve the accuracy and consistency of use-of-force data from law enforcement across the country?
Would you be willing to commit to the development of a national database of all police-involved shooting deaths and deaths in custody?
Additional Resources: Patrice McDermott: Death toll from violent cops is a guessing game
For additional information, please contact Patrice McDermott, executive director of OpenTheGovernment.org, at firstname.lastname@example.org.
July 4, 2016, is the 50th anniversary of the signing of the Freedom of Information Act into law. Fifty years later, FOIA is in dire need of a tune up if it is to become/remain a valuable tool for government oversight. What steps do you believe are necessary (legislative reforms and/or executive measures) to fix FOIA?
Do you believe government offices should approach FOIA with a presumption of openness – i.e., withholding information only if the agency reasonably foresees a specific identifiable harm to an interest protected by an exemption?
Would you support legislation that would codify this policy?
Additional Resources: The Sunshine in Government Initiative: Fix FOIA by 50
For additional information, please contact Kevin Goldberg, legal counsel at the American Society of News Editors, at Goldberg@fhhlaw.com.
- Communications surveillance transparency:
The USA Freedom Act, passed in June 2015, requires more government reporting on the information collected through communications surveillance and requires the intelligence community to review Foreign Intelligence Surveillance Court opinions for declassification. Nonetheless, we still do not know nearly enough about the intelligence community’s ongoing data collection programs, such as those that continue under Executive Order 12333 and Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Do you support greater public accountability through disclosure of information relating to our government’s communications surveillance, in particular with regard to the number of Americans whose information is caught up in programs that are meant to target foreigners outside the United States?
Additional Resources: Brennan Center for Justice: How Many Americans are Swept up in NSA’s Foreign Intelligence Surveillance?asdf
For additional information, please contact Liza Gotein, co-director of the Liberty & National Security Program at the Brennan Center for Justice, at email@example.com.
- Secrecy surrounding the drone-strikes programs: In November 2015, the Obama administration officials met with legal experts and human rights advocates to discuss how to increase transparency relating to the use of drones to carry out lethal strikes overseas.
Do you believe there should be more information available to the public relating to these programs?
What do you believe is the appropriate level of disclosure needed to ensure public scrutiny and government accountability for such programs?
Additional Resources: The Hill: Obama aims to lift veil on drone strikes; Mother Jones: Hey, Have You Heard About the Top Secret US Drone Program?
For additional information, please contact Katherine Hawkins, senior counsel at the Constitution Project, at KHawkins@constitutionproject.org.
- Electronic records management:
There has been significant controversy surrounding the use of personal email by high-level officials to conduct official government business.
What measurable and concrete steps do you believe are needed to ensure that government officials are using only official email addresses to conduct the public’s business and to further ensure public access to those public records?
Additional Resources: OpenTheGovernment.org: Upholding the Right-to-Know in the Digital Age asdf
For additional information, please contact Patrice McDermott, executive director of OpenTheGovernment.org, at firstname.lastname@example.org.
Do you support reforms to provide more protection for public and private sector whistleblowers?
Specifically, what are your thoughts on:
- Ensuring that intelligence community contractors who blow the whistle through designated channels receive the same whistleblower protections available to all other contractor employees?
- Providing federal employees with whistleblower protections that are as strong as those for private sector employees, including access to a jury trial?
- Protecting both public- and private-sector employees against criminal or other civil liability when they engage in whistleblowing already protected by employment law?
- Disciplinary action against managers who have engaged in whistleblower retaliation?
Additional Resources: Shanna Devine and Liz Hempowicz: Whistleblowers and the prosecution loophole
For additional information, please contact Anna Myers, executive director of the Government Accountability Project (GAP), at email@example.com, Shanna Devine with GAP at ShannaD@whistleblower.org, or Elizabeth Hempowitz with the Project On Government Oversight, at firstname.lastname@example.org.
- Open government collaborations between government and non-governmental organizations (NGOs):
The United States has been engaged in both domestic and international initiatives that require government to work with non-governmental stakeholders on open-government reforms, including fiscal transparency and anti-corruption measures. Would you commit to working closely with the nongovernment openness community and other stakeholders to adopt substantive, measurable and transformative commitments to openness?
Additional resources: OpenTheGovernmet.org: US Civil Society Open Government Partnership Resourcesasdf
For additional information about NGO and government stakeholder initiatives, please contact Jesse Franzblau at OpenTheGovernment.org, at email@example.com.
- Campaign finance:
Does the public have a right to know the source of significant funding support for their elected representatives (including leadership PACs, super PACs, 501(c)(4) dark money outlets, etc.)?
If so, what would you do to ensure the public can access such information? Are you opposed to hiding this information from them?
What will you do with regard to ensuring the identification of donors to 501c4 groups and requiring social welfare organizations that engage in election-related activities to file regular publicly available reports before Election Day?
Additional resources: Sunlight Foundation: Campaign Finance and Transparency (link temporarily missing); Moyers and Company: A Victory for Transparency at the FCC
For additional information, please contact Robert Weissman, president of Public Citizen, at firstname.lastname@example.org.
Broad teamwork boosts Sunshine Week 2015
Several organizations teamed up for this year's observance.
McClatchy's v.p. for news in DC Anders Gyllenhaal described an extensive budget of materials for editors and others in the business:
[It is] "the package of stories, essay, graphics, video and photo that will be available to all for the 10th anniversary of Sunshine Week.
"The American Society of Newspaper Editors in 2005 launched the first national Sunshine Week — a celebration of access to public information that has been held every year since to coincide with the March 16 birthday of James Madison, father of the U.S. Constitution and a key advocate of the Bill of Rights.
"This year, ASNE, The Associated Press, McClatchy and Gannett teamed up to develop this package." Other organizations contributed (see the sunshine week site, contributors, and supporters list).
Much of the package moved on the AP wire for publication online beginning March 12 and in print March 13 or 15, or any time after. Much of it is available online for reference or download. [link to package]
- One of the themes is "Sunshine Week – Access at a Price" about the fees agencies charge as part of their barriers to access. (1,500 word docx)
- Another is the role of "a new crop of media players, advocacy groups and corporate interests." (1,600 word docx; or short version, download)
- Gary Pruitt, president of AP, did an essay for download from the ASNE website. (850-word pdf)
- McClatchy's DC staff did a 3-minute video (after 30-sec ad) that includes a federal agency's refusal to release a 30-year-old document as "still incomplete" or the NSA's $60 fee to send a researcher a Wikipedia article he had edited.
- A 10-year timeline for print or online use by McClatchy and Tribune.
- A catalog of editorial cartoons for media use:
There's more: see http://sunshineweek.org
Compiled by Chris Trejbal and others
During Sunshine Week and since, and AOJ members have been stepping up with strong content advocating open government. As is often the case, members shared ideas, encouragement, and links on the AOJ members' discussion list. There's still plenty of time to weigh in with your own editorials and columns to AOJ FOI chair email@example.com
Editorials about the FOIA reform act
- Kansas City Star
- Santa Rosa Press Democrat
Good, bad and ugly open government bills in Texas
- Dallas Morning News
- Boston Globe - "Public records law in tatters in Massachussets"
Florida, "sunshine state," but...
- The Sun-Sentinel: "... high fees, long delays and a never-ending list of exemptions are limiting the ability of citizens and a free press to see what government is doing. And Florida's famed culture of 'government in the sunshine' is suffering death by a thousand cuts."
Glenn Marston is an AOJ member of the Florida Society of News Editors' sunshine committee, and AOJ board member Rosemary Goudreau O’Hara leads it. At her behest, he wrote five 300-word profiles on individuals who press for openness on their own, with mixed results.
Several newspapers picked up the articles. They were distributed by The Associated Press, along with a number of other articles from Florida.
Newspapers that ran the articles Sunday (3/15/15):
- The Miami Herald combined the five into one.
- The Bradenton Herald ran two.
- The Washington Times ran two.
- Editorials, editorial cartoons and columns may be found on the FSNE Sunshine Week webpage:
The Hartford ("Corrupticut") Courant has three pieces up.
(The Courant's paywall, similar to those of several other papers linked above, allows free access to five articles a month and more with registration, and offers full-service subscriptions for varying fees.)
- Police Should Not Be Deciding What Public Can Know
- Undo Court Ruling That Lets Police Suppress Arrest Details
- Stun Gun Deaths Make Good Case For Reforms
How to focus sunshine in a state:
The Daily Press (Virginia Peninsula area) has a series of editorials that demonstrate how to bring the Sunshine focus onto a state:
- The need to streamline Virginia's FOIA:
- Technology's impact on government transparency:
- The open meetings law:
The Wisconsin State Journal urges Congress not to drop the ball again on the FOIA improvement act:
Barriers earn an "F" in Massachusetts:
Former high-profile broadcaster and long-time opinion blogger recounts a mess:
There's a lot more to it than Miz Hillary's oopsie
By John McClelland
Well, to what extent should government employees be required to use and preserve emails related to their jobs? And how?
Hillary Clinton's situation is a bit high-profile, and New York State's 30-day email wipe-out imbroglio may be a bit of an extreme, but....
It is a fair guess that potentially revealing communications about decisions supposedly made on the public's behalf are far too often not available to the public's eyes via the media, or even to special interests.
It is not just State Department messages. Or mysteriously missing tapes required for legitimately closed public-agency meetings on certain exempt topics in some states. Or meetings that are un-announced or improperly closed.
Or police and military reports with almost everything redacted. Or millions of documents improperly classified every year. Or public officials who resist disclosure because of chicanery, or mere embarrassment, or inertia, or habit, or even simple ignorance.
Or agencies that have insufficient FOI staff to handle ballooning numbers of Freedom of Information requests or to educate their fellow public servants about the law.
It is all of those and more.
One big piece of the missing stuff is widespread public awareness of why transparency matters. Sunshine is one of Nature's disinfectants, and we need to do better telling our fellow citizens.
That is one of the things Sunshine Week is about.
It is also, of course, about our roles as journalists in educating, negotiating with, and when necessary suing the keepers of public records, and in educating the public about its own rights and our task in helping it benefit from those rights.
I remember a politico who said the laws were instigated by journalists entirely for our own benefit to sell papers. Take out "entirely" and he had a point. But he missed the bigger picture. We and others use access to inform the public.
Dragging college students to City Hall or the courthouse to dig in public records was always a mutual eye-opener. Almost none were aware of such things, and then some "got it" and dived in.
Now on Pi Day (3/14/15), I'm trying to reserve judgment about Mrs. Clinton's situation, and looking forward to the question arising again during AOJ's State Department Briefing on April 27. But I know there are huuuuuuge battles to be fought elsewhere in the never-ending struggle for openness of public records and actions. Year-'round.
John McClelland was in newspapers for decades before college teaching in Chicago; he is largely retired.
- Our new partners at the Poynter Institute for Media Studies have published on Sunshine:
- American Society of News Editors, big Sunshine package with links:
- Society of Professional Journalists, an extensive collection of materials:
- Previous Masthead articles on Sunshine include:
- We opinion journalists have a job to do: 2014
- Sunshine is a year-round responsibility: 2013
- Any time is good to share the 'why' of open government: 2012
Apps for FOI in the field
The Reporters Committee for Freedom of the Press offered a lasting Sunshine Week present for journalists and anyone else interested in journalism and transparency. RCFP released new apps (announcement and download links) that will help journalists in the field know their rights when it comes to doing their jobs.
There are specific apps for handling situations around schools, cops and recording in public. Each also includes a suite of tools for doing a journalist's job, e.g., taking notes, recording audio, tracking urls and taking pictures.
The apps are available for both Android and Apple devices. rcfp.org