Wednesday, May 31, 2017

Protect Journalists From Hate Crimes

by Michael Dorf

My latest Verdict column discusses the First Amendment implications of the Montana special election. By electing a man who had just body-slammed a reporter for asking a question, did Montana  voters threaten freedom of the press? I explain that while of course there are no direct First Amendment issues raised by the incident (because a candidate for office is not a government actor and the First Amendment only restricts the government), all of our constitutional rights ultimately depend on social acceptance, and the incident--in combination with others, especially those connected to President Trump--thus poses a long-term danger for a free press.

Here I want to propose a relatively modest legal response to that danger: State and federal laws should be amended to provide for penalty enhancements when otherwise criminal conduct is directed at reporters on account of their attempts to ask questions or otherwise do their job.

Penalty enhancers for an illicit motive are a familiar tool in the criminal law. The federal sentencing guidelines provide for enhanced penalties when a perpetrator selects his victim based "in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry . . . ." Many states have similar so-called "hate crime" laws. For example, Wisconsin has a law that provides for enhanced penalties in exactly the same circumstances as the federal guidelines. The SCOTUS unanimously upheld this law against a First Amendment challenge in the 1993 case of Wisconsin v. Mitchell.

Penalty enhancers are not limited to what we conventionally consider hate crimes. The same federal guidelines provision linked above provides for an enhancement for crimes against "vulnerable victims," regardless of motivation, so long as the perpetrator knew or should have known that the victim was vulnerable (because of age, disability, or some other factor). Criminal laws typically provide penalty enhancements for crimes that target police or other law enforcement personnel. Etc. Penalty enhancers operate on the principle that, in addition to the typical harm caused by a crime--death, injury, deprivation of property, etc.--in certain circumstances the crime also causes other types of harm or especially severe harm.

That principle applies--or at least can be applied--when a criminal act targets a journalist because of journalistic activities. In addition to the bodily and psychological harm done to a particular journalist who is victimized, the perpetrator intimidates other journalists, thus chilling the performance of a function that is vital to democracy.

To frame a penalty enhancer for crimes that target journalists qua journalists, legislators would need to grapple with at least two practical complications.

First, there is the question of who counts as a journalist. Federal constitutional law, as articulated in cases like Branzburg v. Hayes, generally accords journalists no special protection. Thus, in Branzburg, the SCOTUS rejected the notion that journalists have a First Amendment privilege to shield their sources.

However, just about every state has chosen a different route--typically providing at least a qualified right of journalists to shield sources. State laws thus need to define who is entitled to the privilege, which calls for the drawing of some difficult lines, especially in the age of mobile phones and social media. Is everyone who wants to capture video and post it on Facebook a journalist? If not, what about regular bloggers? Occasional bloggers? Etc. These are not easy questions but neither are they insuperable obstacles to providing special protection for journalists, as experience under the state shield laws illustrates.

A second question concerns scope. We might agree that Greg Gianforte's assault on a Guardian reporter properly would fall within the core of a penalty enhancer for crimes directed at journalists, but we can imagine more sympathetic defendants. Suppose that in the wake of a house fire in which a parent's child has perished, a reporter persists in questioning the parent about her feelings and she responds by shoving the reporter. Although the shove could be deemed a criminal assault, an enhanced penalty for attacking a journalist would seem excessive in such circumstances.  Accordingly, a properly drafted penalty enhancement would not apply where the public interest in the information sought is slight relative to the privacy interest of the person who responded to the journalist unlawfully.

There might be other nuances that would require tweaks in the wording of a penalty enhancer for attacks on journalists. My goal here is not to set out a model statute but simply to suggest an approach. Adoption of penalty enhancers for attacks on journalists would carry important symbolic meaning, even if such enhancements were actually added to criminal sentences in rare cases.

So how about it? If you are a state or federal legislator (or legislative aide) who cares about protecting press freedom, introduce a bill adding attacks on journalists to the criteria that warrant penalty enhancers.


Shag from Brookline said...

Does the 1st A "press" clause provide benefits beyond its "speech" clause? I recall several articles on the subject in recent years that have not been adopted by the Court. Would defining a journalist relate to the "press" clause"? Or are we all journalists now because the "press" might include, inter alia, the Internet and other advances in communications? While attorneys can be required to be licensed at the state (and perhaps federal) level, it would seem that attempts at licensing journalists would run afoul of the 1st A. A journalist need not be educated in a particular manner, such as higher education in journalism offered at colleges and universities, whereas attorneys are mostly educated via law schools and states provide bar exams to enter the practice of law. As noted in Mike's post, the task of defining a journalist for enhanced protection is not a simple matter. Originalism has not provided a definitive meaning to the "press" clause in relation to the "speech" clause. And however a journalist is defined, in subsequent years the definition might not address situations that might call for enhanced punishment. Perhaps first there is a need to address, define what constitutes "press" freedom beyond the "speech" clause that calls for protection by means of enacting (state or federal) penalty enhancing legislation. Might a constitutional amendment be required? I'm not convinced the system is broken - although body slamming could result in a few broken bones.

Michael C. Dorf said...

The SCOTUS has resisted giving the Press clause any content beyond the Speech clause, mostly because of the ostensible difficulty of defining the press and the worry that benefiting the institutional press would itself be a kind of speaker-based favoritism.

Joe said...

Maybe, it can be Rep. Gianforte's first proposal to do so when federal action is involved. Seriously, I don't know if such legislation is really necessary. His actions do threaten 1A values, but the normal prosecution of the law, especially for such public figures, probably can address the situation. I do understand the concern, but somewhat wary about these sorts of things.

As to Shag, there is as he probably knows a lot of discussion on the differences between "press" and "speech" here, including people like Prof. Volokh arguing that "press" is really more a machine ("printing press") than meant to have an independent meaning. Often it doesn't come up -- "freedom of expression" as a whole is the point -- but in certain cases, the press specifically is treated or spoke differently. This includes in various Supreme Court opinions even if it has repeatedly rejected finding special constitutional protections such a testimonial immunity. OTOH, it has left stand many laws that give the press such protections.

It is telling, e.g., that the Supreme Court itself has special rules for the press. This was flagged, e.g., regarding press pass for the long term (he's about Shag's age) Supreme Court reporter that until recently wrote at SCOTUSBlog etc.

Joe said...

Sonja West, e.g., defended some different applications:

I think her writings came up in regard to defending campaign finance regulations that has some sort of media exception, which some deem problematic.

el roam said...

Thanks for that interesting post , speaking of first amendment and journalists , it is also worth just to bring the comment or version of the other side , then , thinks may look at least bit different , here , The response of his spokesperson ( of the governor ) here :

" Tonight, as Greg was giving a separate interview in a private office, The Guardian’s Ben Jacobs entered the office without permission, aggressively shoved a recorder in Greg’s face, and began asking badgering questions. Jacobs was asked to leave. After asking Jacobs to lower the recorder, Jacobs declined. Greg then attempted to grab the phone that was pushed in his face. Jacobs grabbed Greg’s wrist, and spun away from Greg, pushed them both to the ground. It’s unfortunate that this aggressive behavior from a liberal journalist created this scene at our campaign volunteer BBQ. "

One may read here :


Shag from Brookline said...

Perhaps SCOTUS in due course might consider "self-defense" as a means for politicians to react to the speech/press clauses of the 1st A in the manner of Heller (5-4) for the 2nd A. But Greg's apology post-election seems more than a tad to question the response of his campaign earlier. And old saying, "A day late and a dollar short" comes to mind.

Joseph said...

Of relevance to Shag's question (referenced by Joe):

I think Prof Volokh's work is extremely persuasive on that point.

Joe said...
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Joe said...
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Shag from Brookline said...

It's been a while since I read Eugene's article on the "press" clause. I plan to get back to it to see if he examanined the original meaning of the "press" clause as of 1968 per the 14th A's ratification and incorporation of some of the Bill of Rights, in particular the 1st A. I'm not quite sure that Eugene is an originalist, and if so, of what stripe. What meaning did the "press" have in 1868 in comparison to 1791?

Joe said...

Sonja West in that article and related ones in part responds to EV.

I don't think "original understanding and tradition" is determinative & it can be read in various ways. For some time now, regardless, the press as an institution in various respects gets special treatment. Sometimes, this is a matter of state constitutional law. The US Supreme Court has let such things stand as a whole from what I can tell, even if it won't recognize various special protections for the press as institution are constitutionally protected. This is rather notable too.