James Risen, the Pulitzer Prize-winning journalist for the New York Times, won’t reveal his sources. He’s at the center of the federal criminal prosecution of Jeffrey Alexander Sterling, indicted in 2010 for, among other things, the unauthorized disclosure of national defense information.

Risen is the author of the 2006 book State of War: The Secret History of the CIA and the Bush Administration, and he’s written a number of articles for the New York Times about the CIA and the intelligence community. The book and articles reported on a series of illegal or potentially illegal actions taken by President George W. Bush.

Here’s the background story, the CliffsNotes version. The U.S. Department of Justice (DOJ) subpoenaed Risen in 2008 to testify in the Sterling case. Specifically, the DOJ wanted to show that Sterling was one of Risen’s sources for Chapter 9 of State of War. It reported on a U.S. intelligence operation that might have helped Iran, inadvertently, to develop a nuclear weapons program.

Risen opposed the subpoena, and it expired in 2009. Then, in 2010, the DOJ issued a second subpoena, and when it was quashed, the DOJ issued a third subpoena. The DOJ is very much like a jealous lover: persistent and annoying … and always watching you (the DOJ obtained Risen’s telephone, credit, airline and bank records).

A few months later, U.S. District Judge Leonie M. Brinkema ruled that Risen had a qualified reporter’s privilege not to testify in the Sterling case, writing, “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook.” Naturally, the DOJ appealed, arguing that no such privilege existed in criminal trials. That’s where the case stands today.

Three judges from the U.S. Court of Appeals for the Fourth Circuit heard oral arguments Friday to review Brinkema’s ruling and ultimately to decide whether Risen could claim the privilege. It’s unclear when the panel will render its decision, but when it does, assuming the judges don’t decide the case on technical grounds, it will make a mark on the First Amendment.

And it will make a mark, too, on newsgathering and the free flow of information, putting aside the points of law: the questions surrounding Branzburg, the specter of licensing, the availability of the privilege to journalists who are witnesses to crimes, and so on. There is a practical dimension of the privilege that deserves attention.

I’ve used confidential sources only a few times in my journalistic career, and I’ve never given lightly the promise of confidentiality. Each time, in addition to policies at specific outlets, I’ve followed a set of guidelines Poynter created that command reporters, before making such promises, to fulfill at least four criteria. They are:

(1) A story using confidential sources must be of overwhelming public concern. (2) Before using an unnamed source, you must be convinced there is no other way to get the essential information on the record. (3) The unnamed source must have verifiable and first-hand knowledge of the story. (4) You must be willing to reveal to the public why the source cannot be named and what, if any, promises the news outlet made to get the information.

For his part, Risen swore in an affidavit that he “could not have written Chapter 9 of State of War … without the use of confidential source(s). My source(s) for Chapter 9 provided me with information with the understanding that I would not reveal their identities.” Risen went on to say:

“Any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so. This is particularly true in my current line of work covering stories relating to national security, intelligence, and terrorism. If I aided the Government in its effort to prosecute my confidential source(s) for providing information to me under terms of confidentiality, I would inevitably be compromising my own ability to gather news in the future … In my ongoing reporting and newsgathering, numerous sources of confidential information have told me that they are comfortable speaking to me in confidence specifically because I have shown that I will honor my word and maintain their confidence even in the face of Government efforts to force me to reveal their identities or information. The fact that I have not previously revealed my sources has allowed me to gain access to newsworthy information that I could not otherwise get.”

Right there, Risen satisfies three of the four Poynter criteria, save the third one, which he satisfies, very generally, elsewhere in the affidavit. It’s worth noting, too, that surveys have indicated the public is wary of the use of confidential sources but acknowledges the need for them under certain circumstances.

Take, for example, a 2005 poll by the Pew Research Center for The People & The Press. It found that 52 percent of respondents thought it was too risky to use confidential sources because of the potential for inaccurate reporting. But 76 percent agreed that sometimes—e.g., if it’s the only way to obtain important information—the use of confidential sources could be justified.

As a media lawyer, I have a dog in this fight, and I hope the Fourth Circuit follows the majority of federal appeals courts that have read Branzburg’s (peculiar) configuration of opinions to create a qualified privilege—at least in non-grand jury settings. And I hope the Fourth Circuit acknowledges that in rare circumstances, journalists need to use confidential sources. That may seem like a policy matter best left to Congress, where shield bills die slow and agonizing deaths, but it’s also a free-flow-of-information matter protected by the First Amendment.

Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He has written on legal issues for a variety of news outlets, most recently the Columbia Journalism Review, The Nation, Wired and PBS. Follow him @jonathanwpeters on Twitter. 

So it’s embarrassing, and more than one sterling legal academic has pointed this out with a book or a journal article, to the point that this sad fact becomes somewhat hackneyed. This doesn’t mean that one should give up on children, however.

No. In fact, now is the time to jump on this issue and ratify. Why? Well, it’s best to go through a few of the reasons it didn’t pass when President Clinton decided not to send it to the Senate in the first place. Jesse Helms, the chairman of the Senate Foreign Relations Committee at the time, foretold that the sky would fall if the CRC went through – it would ruin the American family unit by stopping parents from disciplining their kids. This is untrue: the CRC goes out of its way to respect the family unit as a fundamental building block of humanity. Further, back in the dark ages (until 2010) this country still executed children and/or sentenced them to life without parole, but the Supreme Court has largely stopped that. So where does that leave us?

There is no good reason to not be a member of the CRC at this point. Moreover, there is a good political groundswell that could get this through, and I mean now (three weeks ago, really). Case in point: you may have heard we have a “war on women” going on right now. Well, even if you haven’t, we do. This particular political hot potato is so toxic that grown adult politicians resorted to “I know you are but what am I” arguments on who actually dislikes women.

Senators should ask for the CRC from President Obama and get candidate Romney on record as to whether or not he supports a war on children. I think he might surprise us and say he doesn’t. Moreover, it only took one senator – Jesse Helms – to keep the treaty from even being sent to the Senate; I posit that it will only take one good senator to shake people out of this stupor and get it done. In the context of the current war, I think we have that Senator.

This is the day, now is the time. The same poor “attack on families” argument is being used to keep regulations from preventing abusive child labor practices from going through. We have multiple states where children are participating in ultimate fighting. Changing the dialog on whether children’s rights somehow hurt families is badly needed, because children are suffering while people huff about their traditional right to watch little kids engage in bloodsports.

*(South Sudan, the world’s newest country, hasn’t got around to it either. But I don’t expect that every professor is up to speed on that yet.)

Summarized roughly, defendants (i.e., employers) and their representatives feel that it’s too easy for plaintiffs to file an employment discrimination case.  Defendants are concerned that “problem employees” can easily “hijack” the legal system, and suggest that “discrimination is rare” in reality.  Plaintiffs (i.e., employees), by contrast, often view the process of litigation as stacked against them – especially when they’re pro se.  Plaintiffs also bear much higher personal burdens – while defendants can account for litigation expenses as “routine operating costs,” a court case takes an enormous economic and personal toll on individual plaintiffs.

I was familiar with some of Nielsen’s prior work on employment discrimination litigation, specifically Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States (with Robert Nelson and Ryon Lancaster), published in 2010.  That paper analyzes case outcomes of employment discrimination cases in federal court at several different points in the litigation process, assessing plaintiffs’ success rate at the motion to dismiss, summary judgment, and other key stages.  The conclusion is that plaintiffs fare very poorly, worse than the average plaintiff in federal court – and, that “litigation rarely achieves the objectives” of the civil rights statutes that prohibit employment discrimination.  (The authors define those goals as offering remedies for those wronged and fostering systemic reform of workplace discrimination.)

Both Situated Justice and Individual Justice focus on employment discrimination claims in litigation, but the papers’ findings might have some relevance to assessing pre-litigation disputes or other types of workplace fairness issues.  For example, Situated Justice concluded that employees view the process of litigation as unfair and Individual Justice found that employees fare poorly at the motion to dismiss and summary judgment stage.  It would be much more difficult to conduct the same assessment of internal EEO or grievance processes – but it seems more than possible that the same trends crop up in those situations as well.

What is notable about the decision is not that it took place–this is the same Virginia General Assembly that seriously considered requiring trans-vaginal ultrasounds–but instead the candor with which the Delegates discussed their reasoning. As a matter of public record, Delegate Bob Marshall stated that Thorne-Begland would not be able discharge his duties due to his biography. His biography, meaning his opposition to “Don’t Ask, Don’t Tell” in the United States military, the fact that he and his partner are openly living together as a couple and his participation in Equality Virginia, a gay rights group. These activities Delegate Marshall apparently described as pursuing an “an aggressive, activist homosexual agenda.” Due to these issues, he would not be able to be impartial if he became a General District Court Judge, a judgeship that exclusively adjudicates misdemeanors, traffic offenses and low dollar value civil suits. The idea would be laughable, if it were not so sad. These open displays of intolerance will only further alienate young people and others who believe in fairness and equal opportunity. As Commonwealth’s Attorney Michael Herring said, this judgeship vote is an “embarrassment for Virginia.”

The United Nations, which is supposed to deal with these things, has promulgated various treaties and principles over the last fifty years meant to deal with how nations explore and use outer space.  Unfortunately, these principles are laughably underdeveloped and pie in the sky.  Article 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies contains high sounding rhetoric denying that states or parties under their jurisdiction can appropriate any portion of the moon or other celestial bodies simply by placing structures or other equipment there.  That’s probably fine when the concern is a space race between the United States and China, but it makes a lot less sense when it comes to private mining companies and the various other space industries that are going to spring up as the cost of getting into orbit drops and mineral shortages on Earth make space exploration a cost-effective proposition.

Imagine that space mining operations actually begin in earnest.  There will presumably be asteroids that are more desirable to mine than others.  Under the current regime, no one can appropriate the asteroid or even the patch of the asteroid that’s been mined.  Every time a mining robot leaves, another company can swoop in and take advantage of all the work that has already been done.  Without some sort of property rights system in place, the natural outcome will be less exploitation of space resources than is probably optimal for humanity, as miners are worried about free riders appropriating their work.

There are serious issues to be considered regarding which laws of property should apply in space and how they should be applied.  The UN should work on setting up both a legal regime that better reflects the exigencies of commercial use of space and institutions that can support and nurture such a regime.

Your tweets are no different from bank records, a New York judge ruled Monday.  Prosecutors had subpoenaed an Occupy protestor’s tweets after he was arrested in the fall during a Brooklyn Bridge protest.  The judge was ruling on the protestor’s motion to quash the subpoena, which sought “user information, including email address,” and three months of tweets from the protestor’s Twitter feed. As Adam Martin wrote in The Atlantic:

 Judge Matthew Sciarrino Jr. wrote that there was no precedent in New York for an order to quash a subpoena to a “third-party online social networking service seeking to obtain the defendant’s user information and postings.” But he wrote that “an analogy may be drawn to the bank record cases where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank.” Sciarrino ruled that [the protestor] couldn’t quash the subpoena, but he didn’t necessarily rule that the tweets or other information would be admissible as evidence.

The judge added that prosecutors proved that the tweets might be relevant to the case against the protestor, calling into question his “anticipated defense” that police officers led protesters onto the bridge before arresting them.  The judge also said that ”Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his.”  (The license is non-exclusive.)  For its part, Twitter had notified the protestor of the subpoena and had refused to comply with it while the protestor prepared his motion to quash.

I’m troubled by the judge’s reasoning.

First, he doesn’t appear to understand the nature of social media.  Take, for example, footnote 3 of the opinion: “The reality of today’s world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate and to some extent has supplemented email for many people.”

It’s a bit strange to say that social media have “supplemented” email, because social media haven’t really added to email.  They’re just different.  In other words, the purposes and capabilities of email are different from the purposes and capabilities of Twitter, Facebook, Pinterest, etc.  So the judge is comparing apples to oranges, in a way that reminds me of the time a friend asked me if she should “buy a Twitter device.”

Second, tweets are different from bank records.  The latter, quite literally, are the business records of the bank.  They document the business transactions between the bank and its customers.  As a result, the records belong to the bank, and the customer cannot claim that he owns or possesses them.  Fair enough.  But tweets are not the business records of Twitter, and they do not document the business transactions between Twitter and its users.

Even though Twitter retains a non-exclusive license to use them, tweets are a form of user-generated content, and they are personal and expressive, unlike bank records.  Even the judge said as much in his opinion: “With a click of the mouse or now with even the touch of a finger, Twitter users are able to transmit their personal thoughts, ideas, declarations, schemes, pictures, videos and location, for the public to view.”  He also referred to Twitter as “an information network.”  Again, apples to oranges, bank records to tweets.

Third, the judge helpfully explains that “we do not have a physical ‘home’ on the Internet” and that “the Fourth Amendment provides protection for our physical homes.”  (My friends who play FarmVille will be super pissed when they learn this.)  The judge goes on to describe the Internet’s infrastructure, which is different, of course, from a physical home’s:

What an Internet user simply has is a network account consisting of a block of computer storage that is owned by a network service provider. As a user, we may think that storage space to be like a “virtual home,” and with that strong privacy protection similar to our physical homes. However, that “home” is a block of ones and zeroes stored somewhere on someone’s computer. As a consequence, some of our most private information is sent to third parties and held far away on remote network servers. A Twitter user may think that the same “home” principle may be applied to their Twitter account. When in reality the user is sending information to the third party, Twitter.

Argh.  No less than the U.S. Supreme Court has said otherwise, that the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.”  Katz v. United States, 389 U. S. 347, 353 (1967).  And as Justice Sotomayor wrote in her concurring opinion in U.S. v. Jones, it’s time “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” 565 U.S. __  at 5 (2012).  The New York case, admittedly, might not be a great vehicle to test that premise, because it involved publicly accessible tweets.  But the underlying principle remains.

The mere fact that information is “held far away on remote network servers” shouldn’t dictate the Fourth Amendment protection for that information, not in a world where more people are doing more things online, many of them mundane.  Today, I store information in the cloud that one year ago I would have stored on a local server or in a desk drawer.  Today, sending information online to third parties is a function of my daily affairs.  Today, the Fourth Amendment would turn a blind eye.  That’s bad policy, and as Sotomayor wrote, “this approach is ill suited to the digital age.”

Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He has written on legal issues for a variety of news outlets, most recently the Columbia Journalism Review, The Nation, Wired and PBS. Email him at jonathan.w.peters@gmail.com.  Follow me @jonathanwpeters on Twitter. 

Whither federalism?

2012 is a very different place from 1789, where there were no phones, no lights, no motor cars, not a single luxury! Of necessity, a person had the most interaction with his or her local government, and perhaps the state government. But the national government? Unless you lived on the mid-Atlantic coast, Washington, D.C. was a far-off place.

Washington, D.C. — and our federal representatives — are now a phone call away. Technology has made most commerce interstate, allowing Congress to insert itself into places that the authors of the Constitution never contemplated. One of the state-respondents’ big arguments in the issue of the Affordable Care Act was that it would violate the principle of federalism. Earlier this week, the conservative justices seemed amenable to the idea that preemption of Arizona’s immigration law might violate state sovereignty.

In practice, however, “state sovereignty” is not so much a substantive doctrine as it is a refuge. The Affordable Care Act might violate state sovereignty, but what does that mean? If Congress wants to come up with a national solution to a national problem, should it be impeded by “states’ rights”? States’ rights to what? Merely to have sovereignty?

Federalism, states’ rights, state sovereignty: these words carried more weight two hundred years ago, when, truly, each State was a separate fiefdom. But two hundred years of being a Union of States, coupled with technological advances that make interstate interaction orders of magnitude easier than in the past, issues that formerly were local issues can become national issues.

There’s also a question about which level of government is better for securing rights and liberties. Before the Civil War, we all thought that the state governments were the bastions of freedom protecting us from the tyranny of the general government back in Washington. Then Dred Scott happened, the Civil War happened, and we discovered that state governments could be oppressive and tyrannical, too.

Running for president in the 1960s, Richard Nixon used “states’ rights” as a euphemism for “states should be able to discriminate based on race if they want to.” Even though Chief Justice Roberts explicitly excluded the notion of racial profiling at the beginning of the Arizona immigration law oral arguments, the spectre of profiling remained throughout the discussion. It is undeniable Arizona is invoking “states’ rights” so that it can profile whomever it wants.

So even though far more issues today are of national scope than they were in 1789, and even though Congress is in a position to address those issues, they shouldn’t be able to because of a 200-year-old, formalistic doctrine that speaks not to actual resolution of problems but to “liberty” as nothing more than an empty catchphrase.

Robinson presented statistical and anecdotal evidence of discrimination in jury selection statewide, in the court in which he was tried, and in his trial. Unlike federal constitutional challenges to jury selection, the Act does not require defendants to prove a prosecutor’s discriminatory motive. The court gave great weight to a study of prosecutors’ peremptory challenges which concluded that potential black jurors were twice as likely be excluded as non-black potential jurors. This conclusion was true across North Carolina.  The state did not do much to counter the results.

The prosecutor in Robinson’s case admitted that everyone is influenced by unconscious biases, but he denied discriminating in this case. Judge Weeks noted that, because bias can be unconscious, he could not give credence to the prosector’s denial.

The study covered capital convictions in trials from 1990 to 2010, when the study began. All but one of North Carolina’s death row inmates were tried in this time period. Armed with the results of this study, these inmates will likely follow Robinson’s lead. Does that mean that all death sentences in the state will be overturned?

If it does, it will be the fault of prosecutors for failing to adequately implement defendants’ constitutional right to a fair jury selection. Judge Weeks said that North Carolina, unlike other states, had not trained its prosecutors to avoid racial bias. Instead, prosectors’ training focused on how to offer non-racial explanations for their peremptory challenges.

If the Racial Justice Act is effectively a repeal of the death penalty, the citizens of North Carolina should applaud. These cases will ensure that courts can act to rectify unconscious or unspoken racial prejudice in the criminal justice system. Other states should follow North Carolina’s lead.

* Full disclosure: I was in Professor Warren’s Contracts class last fall and have volunteered on her campaign this spring.

Last Friday, Professor Warren was on Morning Joe and, so quickly and so subtly that it might have been easy to miss, drew on another classic way of defending investment in education and infrastructure, straight out of a very old progressive playbook. Right around 4:45 in the video, she mentions, offhandedly, that China is investing 9% of its GDP in infrastructure, compared to our 2.4%, a statistic that she cites regularly. This is the old Sputnik argument: if we don’t do it, our international competitors (or “enemies,” depending on the context — enemies are good for motivating people) will surge ahead of us and we will lose our standing in the world.

Or, as Professor Warren put it on the Daily Show, we will have no future (at 5:30 in the link).

For progressives who think that a contractionary fiscal policy (i.e. cutting spending) in a down economy like ours is a terrible idea (as Paul Krugman has been arguing for some time and France is starting to acknowledge) and need some rhetorical way to defend spending money on schools and roads and the like, I think we could do worse than to emulate Professor Warren and perhaps go even further. China has had a staggering GDP growth rate of 8% or higher in nearly every single one of the past 30 years. The U.S.’s economy has grown at less than half that rate in most years in the same timespan. China passed Japan as the second-largest economy in the world in 2010, second only to the U.S. The math is fairly simple; if China continues at a white-hot 10% growth rate, and we continue at a tepid 2%, China will pass us in 12 years. Alter those numbers somewhat, and China passes us in 20 years, or perhaps 25.

Honestly, I have very little idea what practical consequences there would be if China were to pass us as the largest economy in the world. But in a society where horse-race journalism dominates media coverage, this can be an appealing way to package the message.

To maintain our position in world affairs, we need smart investments in education, and we need well-placed investments in infrastructure. Or else we have a future, but it’s a future of stagnation, flat wages, unequal opportunities, and — most importantly for the message — the end of our leadership in the international community.

A number of civil liberties groups, including the American Civil Liberties Union, have decried the decision. The Boston Globe reported that Carol Rose, the executive director of the ACLU of Massachusetts stated that the case showed that there is a “Muslim exception to the First Amendment.” Mehanna’s sentencing statement was chilling in its indictment of the United States government, and its complicity in numerous killings in predominantly Muslim countries. It also spoke of being forced to choose between being a government informant and facing prosecution. Mehanna chose “the hard way,” as he explains.

What does it mean that translating materials now counts as “material support for terrorism”? Although the concept is not novel, it is clear that this is a new interpretation, it could have far-reaching effects, as the definition of “material support” affects asylum, issues of charitable contributions and technology related issues as well. If translation of materials that are objectionable can lead to prosecution for material support for terrorism, what other arenas possibly constitute terrorism? What other groups are possibly under scrutiny for domestic terrorism? Will their members also be subject to possible prosecution under this rubric? Only time will tell how far the Government will go in arguing this definition and how much more far-reaching the implications will be.