“This Land Is Your Land…”: A Recap from Thomson Reuters Second CLE Discussion on the Bill of Rights
Earlier this spring, Thomson Reuters launched an ongoing CLE series focused on the Bill of Rights and the impact of the amendments on today’s political and social landscape. The first session – which featured Judge Wilhelmina Wright, US District Court judge; Representative Paul Thissen, the former speaker of the Minnesota House of Representatives; and Kevin Lindsey, commissioner of the Minnesota Department of Human Rights – took a broad look at the Bill of Rights as a whole. The second session, which was held at Thomson Reuters Eagan campus earlier this month, took a deeper dive into the First Amendment.
Dubbed “This Land Is Our Land: Real News and the Freedom of the Press,” moderator Rick King, executive vice president of Operations at Thomson Reuters, welcomed panelists Justice Barry Anderson, associate justice of the Minnesota Supreme Court; Sylvia Strobel, senior vice president and general counsel for American Public Media and Minnesota Public Radio; and Bill Pentelovitch, chair of the board of directors for the American Civil Liberties Union of Minnesota.
The panel first discussed how they consume news, with each noting the value of subscribing to a number of print, broadcast and online sources. Both Justice Anderson and Pentalovitch, offering a nod to Strobel, touted the virtue of Minnesota Public Radio.
In one his first questions, King asked the panelist to share their views on the growing threat to journalists around the world, to which Strobel admitted that this is a challenge for many people in her newsroom.
“It’s a fine balancing act between making sure that [journalists] are not in physical danger with doing what they’re doing, but making sure [they have] the tools they need to keep citizens informed, and certainly in other parts of the world, they are in more danger,” Strobel described, citing a recent climb in the number of journalists who have been injured or killed in the line of duty around the globe. Pantalovitch noted that these concerns apply to demonstrators exercising their rights, as well.
“We’re relatively lucky in Minnesota because we have not had much suppression of free speech,” Pentalovitch explained, admitting there have been a few notable cases in recent years. “The police in Minneapolis and St. Paul are pretty sensitive most of the time to free speech rights.” He described his experience working with the ACLU on behalf of protesters who sought to demonstrate during the 2008 Republican National Convention in St. Paul, negotiating with federal, state and local law enforcement on the location for protest safe zones during the event. While Pentalovitch conceded that protesters didn’t get everything they wanted, they weren’t “shut out” from discussing these issues either, and, in the end, arrests were minimal.
From a legal standpoint, Justice Anderson noted that judges must be connected to these “discussions” as well in order to protect citizens’ rights. He explained that in situations where Americans see the coverage of arrests or legal proceedings related to protesters around the country, there’s so much more that goes on behind the scenes to make sure people’s First Amendment rights are ensured. The discussion then turned to proposed legislation, particularly one bill in Minnesota that would have made protesters liable for law enforcement costs when protests block roads.
“When you start trying to legislate things that impact free speech, you get interesting coalitions,” Pentalovitch described. “Neither side of the political spectrum wants to see their right to protest cut-off… Free speech is not a liberal/conservative divide, in my experience.”
The discussion then turned to more complex issues related to freedom of the press, and the rights journalists have in regard to sources – and a key topic of many current debates – who leak sensitive content to the press. To Justice Anderson, the tension between the government and the press that seeks to report on its activities “will continue.”
“The thing about the Constitution and the Bill of Rights… even though the language is a little hard for the modern ear to decipher – [is that] it’s not a complicated document.”
Justice Anderson was clear that the opening phrase of the First Amendment, “Congress shall make no law…” was deliberately and clearly worded, noting, “I don’t view that as a bug, but as a feature.”
Pentalovitch noted that the First Amendment doesn’t protect sources, but rather the right for journalists to publish leaked information; privilege between a journalist and a source is a contract, but one that can be put at risk if a court orders a journalist to divulge a source. “But it’s a very tricky business,” he conceded. The focus then shifts to the legislature – usually the states – to decide if they want to enshrine certain rights and privilege beyond the Bill of Rights.”
As it relates to the balance between government and the press, and granting reporters access to information, Strobel noted an increasing amount of pushback from the government on reporters across the country. Naturally, she explained, this is when a reporter starts to ask “why,” prompting them to dig deeper and potentially expose them to greater risk of being forced to name sources and/or face legal consequences.
This brought the discussion to the topic of “fake news.” As Strobel explained, “fake news” has been around for quite some time, but it was typically referred to as satire. Only now has the definition changed.
“Today, [fake news] is being thrown around to describe news that someone doesn’t like, more than anything else, whether or not it’s accurate,” she said. The issue today, the panel noted, is that people tend to run to social media to help promote, or validate, their own agenda. In the end, journalism – as the saying goes – is often best left to the professionals.
For more on future installments of the “This Land Is Your Land…” CLE series, including the third panel discussion which is likely to land in August, visit Legal Current.