Law

Sieve! Sieve! Sieve! AG Pam Bondi green-lights the harassment of journalists as a result of Trump administration leaks

(Rare footage of Wisconsin Badger Hockey fans either taunting an opposing goalie for failing to make a save or mocking Pam Bondi for not running a tighter ship when it comes to stopping sources from leaking information to the media… )

THE LEAD: Attorney General Pam Bondi decided the best way to stop the sieve-like nature of the Trump administration’s leaking problem was to go after the journalists who received the information instead of the people leaking it.

To do that, she issued a memo late last month that made it easier for the government to subpoena reporters, their notes and other documents.

[T]he Bondi memo appears to have rescinded a specific provision protecting journalists from Justice Department subpoenas, court orders and search warrants based on the “receipt, possession, or publication” of classified information.

This change would make it easier for Justice Department attorneys to pursue journalists to identify confidential sources in reporting that involves leaks — like the Pentagon Papers or Watergate. And that could chill news reporting in the public interest.

THE MEMO: Bondi’s four-page explanation for her rollback of the protections put in place more than a decade ago under Merrick Garland offers both shot across the bow at journalists who receive and use leaked material as well as a general disdain for journalists generally:

Without question, it is a bedrock principle that a free and independent press is vital to the functioning of our democracy. The Department of Justice will defend that principle, despite the lack of independence of certain members of the legacy news media.

My takeaway is bloggers, as non-legacy news media, are safe to be completely dependent upon whomever they want for cash and prizes while taking leaked documents. So… Send your cryptocurrency bribes and emails about TrumpCoin to the email address linked on the blog’s About Us page…

Also, this feels more like an angry wedding party host giving a toast more than a serious memo at this point: “I’d like to say congratulations to Jill, the bride, my sister and my best friend. I will always be there for you, even though you slept with my prom date while I was throwing up in the bathroom at after prom. Still, love you, Jill! Jack, welcome to our family, and you might want to get a blood test… ”

And then there’s this…

This Justice Department will not tolerate unauthorized disclosures that undermine President Trump’s policies, victimize government agencies, and cause harm to the American people. “Where a Government employee improperly discloses sensitive information for the purposes of personal enrichment and undermining our foreign policy, national security, and Government effectiveness—all ultimately designed to sow chaos and distrust in Government—this conduct could properly be characterized as treasonous.”8 

A lot of suppositions there, not the least of which is that stuff “could” be treasonous or that all disclosures they want to attack are also definitely meant to undermine policies, victimize agencies and hurt people. By the way, the quote is from one of Trump’s executive orders, as are several other footnoted passages. Just one more reason to read the footnotes before assuming the content is valid.

The memo demonstrated why she probably should have hired one of those journalists she is now targeting to do some proofreading and copy editing:

The Attorney General must also approve efforts to question or arrest members of thew news media.

(Emphasis mine)

 

SO HOW FREAKED OUT SHOULD YOU BE? I wanted to run this past a couple of my “legal eagle” friends to basically get two questions answered before I posted about this:

  1. What is essentially going on here?
  2. How freaked out should journalism folks be about this and why?

Starting with the answer to number one, the legal folks explained that we do not have a nationwide press-shield law, nor an unfettered reporter’s privilege to legally keep the government at bay indefinitely. The case of Branzburg v. Hayes (1972) established that reporters can be compelled to break confidentiality agreements with sources if the government feels it is important that they do so.

As one of the legal folks noted, this isn’t just Trump being Trump about stuff he doesn’t like. Other administrations have also poked the media in a similar fashion when the situation benefited them:

“Many admins have used their federal investigative powers to harass journalists — Nixon famously, but definitely GW Bush and even Obama and certainly the Trump 1 admin. Merrick Garland as AG issued a memo saying his justice department wouldn’t do that, but that’s just guidance, it’s not binding. Congress had a chance to pass the PRESS Act in December provide more protection by law, but Trump told the GOP to kill it, and they did.”

As for number two, the answer basically comes down to, “Be as freaked out as you normally would be about dealing with leaks, because you never really had a lot of protection to begin with.” As one of those legal eagles put it:

“Congress has never passed a shield law, or Free Flow of Information Act, so our legal protection has always been in that weird middle space left by Powell’s concurring opinion in Branzburg.

“We still have a little bit of protection if there’s evidence the government is acting in bad faith or retaliation or harassment against journalists instead of having a bona fide need to get information they can’t get otherwise.

“I think this is more about undoing anything the Biden admin did than anything practically different. We all knew Trump and his admin would go after journalists — he’s been clear about that since before he was elected the first time.”

Essentially, the law itself hasn’t really changed, nor has anyone really stood up for journalists on the federal level (states have passed shield laws here and there, but that doesn’t apply when the fed comes calling). That said, it’s the enforcement that’s likely to be more of a concern.

“Trump and anyone serving in his administration see journalists who report things they don’t like as the enemy. They will target them for retaliation and force their newsrooms (if they work for one) to invest resources to fight in court. Bondi just gave the green light for that. Nixon would be proud.”

(SNIP)

“If anything, I think it’s aimed at trying to scare journalists from publishing leaks — or to scare leakers that journalists may not be able to protect them.”

“I’m not sure that’s gonna work, but it’s definitely the message Trump wants to send.”

DISCUSSION STARTER: What are your thoughts on the Bondi memo as well as the history of the government not solidifying a national media-protection act of some kind? Would that make you more or less worried about what to do if you received important information via a leak?

 

It’s all fun and games until someone sues you for being an idiot: Pat McAfee Edition

ESPN forced to put out 'don't sue us' disclaimer as Pat McAfee show launches on live TV as NFL icon apologizes at start | The US Sun

The disclaimer on the front of Pat McAfee’s show.

THE LEAD: Pat McAfee, former NFL punter and current podcast maven, amplified an internet rumor on his show about Ole Miss quarterback Jaxon Dart and his girlfriend, Mary Kate Cornett. The unsupported allegation was that the 18-year-old freshman student was involved in a “triangle” of sexual relations with Dart and Dart’s father.

After suffering weeks of abuse, threats and other unpleasantness via the Online Idiot Brigade of Dude-Bros, Cornett plans to sue for defamation:

Now she is looking to hold accountable those who contributed to ruining her life, with McAfee and his network, ESPN, clearly in her sights.

“I’m not a public figure that you can go talk about on your show to get more views,” Cornett said on NBC.

BACKGROUND: McAfee is one of several larger “main-stream” media outlets that amplified this rumor. Barstool Sports folks promoted the rumor, along with a meme coin of Cornett. Former NFL player Antonio Brown posted a meme about the rumor. And this doesn’t count the number of other yahoos and local “shock-jock” idiots who did their own hot takes on the topic.

As a result, Cornett’s life has become a literal living hell:

As the rumor spread, Cornett removed her name from outside her dorm room, but she still had vile messages slipped under her door. Campus police told her she was a target, and she moved into emergency housing and switched to online courses.

Houston police showed up to her mother’s house, guns drawn, in the early hours of Feb. 27, in an apparent instance of “swatting” – when someone falsely reports a crime in hopes of dispatching emergency responders to a residence. According to security camera footage and a police report reviewed by The Athletic, the homicide division responded to the call.

After her phone number was posted online, Cornett’s voicemail was filled with degrading messages. In one, a man laughs as he says that she’s been a “naughty girl” and cheerfully asks her to give him a call. Another male caller says that he has a son, too, in case she’s interested. Several people texted her obscene messages, calling her a “whore” and a “slut” and advised her to kill herself.

 

UNDERSTANDING THE LAW: I talked to a couple Legal Eagle friends about this and they’re pretty much in agreement that anything from a defamation suit to an invasion of privacy case would likely tilt in Cornett’s favor. The key things to consider are this:

  • Cornett is not a public figure by any reasonable definition of the term, which means defamation is easier to prove. Yes, she’s dating a high-profile college athlete in the days of NIL money, but that doesn’t make her fair game. If she were a high-profile athlete or if she were promoting her personal brand of something or other online with a “brought to you by Jaxon Dart’s girlfriend,” McAfee’s actions would remain despicable, but the law could be a bit murkier. As a private individual, the standard she has to prove is negligence, not actual malice.
  • The rumor and the people spreading it (especially McAfee) have offered no proof for the allegations they are making about Cornett. As far as anyone can tell, this started out as a random post on YikYak and just kind of spread all over the place. Truth is one of the best “silver bullet” defenses against libel, which is why accuracy is so vital in journalism. If you accuse your university president of running a cocaine ring out of the basement of the student union, and you can prove it, you’re likely up for a Pulitzer, as opposed to a multi-million-dollar legal bill.
  • McAfee is not protected by the word “allegedly,” despite him and his panel of merry men slathering it about like mayo on a BLT. As we’ve discussed before, “allegedly” offers no legal protection.
  • McAfee is also not protected by his stupid disclaimer about it just being a joke-y show with a bunch of “stooges” just throwing bull around. If simple disclaimers like that worked, I’d put one on the back of Amy’s truck that says, “Disclaimer: I have a lead foot and a total disregard for my speedometer, so don’t pull me over to ticket me. I won’t change my behavior.”
  • Hyperbole doesn’t protect him either. The concept of hyperbole is that something has to be so outlandish that no reasonable person would believe it to be true. That’s why the Flynt v. Falwell case ended up in the favor of the porn producer, not the televangelist.

DOCTOR OF PAPER HOT TAKE: The first and most obvious thought is that Pat McAfee should know better than to do this. He’s 37 years old, so he’s been a grown-up for quite some time. He graduated with a communications degree from West Virginia University, so it’s likely he ran into some course at some point about what is and isn’t legal to say on air. He’s got a listener base of nearly 3 million people, so he should know that anything he says has a real chance to have a significant impact.

Even if he were none of those things, basic human decency plus the ability to observe the carnage that has befallen this poor kid* should have clued him in that it’s time to call off the dogs and apologize about this. (*Yes, the law considers her an adult, but she’s still basically a kid. Tell me you felt like a fully formed adult ready to deal with the world at large and I’ll be hard-pressed to believe you.)

Life as a teenager is ridiculously hard as it is. People are angry, petty and stupid. You feel lost and unable to control anything. Your mind races and wanders all at the same time as you try to figure things out for yourself, as every adult around you seems to be asking, “So, what are you going to do next?”

That doesn’t even account for the way in which social media has amplified the “Mean Girls” aspects of life, in which rumors spread more quickly, people get more vitriolic and anxiety can become amplified many times over. The crap teens say to their peers on a daily basis on social media channels could peel paint and give a truck driver the vapors. Now, imagine that it’s the entire world seemingly aligning against you for no good reason other than some chucklehead thought it would be funny to tell people you slept with someone’s dad.

I can’t imagine a way out. Actually, I can and others have as well, which is devastating beyond belief.

I$ Ca$h $peech? Elon Musk has a couple million thoughts on that…

Make It Rain Money GIF - Find & Share on GIPHY
An artistic rendering of Elon Musk’s rally in Green Bay on Sunday…

THE LEAD: Elon Musk handed out two $1 million checks Sunday as part of his efforts to rally voters for Brad Schimel in the Wisconsin State Supreme Court race.

Musk apparently decided that dumping $20 million in ad money into my home state’s Supreme Court Election wasn’t doing enough, so he decided to start handing out money to potential voters like it was parade candy.

Aside from offering people $100 each to sign a petition against “activist judges” (a thinly veiled swipe at the Democrat-backed candidate Susan Crawford), he took it a step further in offering the big cash prizes to a couple Wisconsin voters.

State AG Josh Kaul filed suit in an attempt to block this move, even as Musk was reshaping his offer:

Kaul is asking a Madison-based state appeals court to issue an order barring Musk from handing out $1 million checks to voters ahead of a planned Sunday event in Green Bay. The Democratic Attorney General first sought the ruling from a Columbia County judge who declined to act before Sunday, according to Kaul.

In a since-deleted post on X, Musk said he would hold an event Sunday in Wisconsin and hand out $1 million checks to voters “in appreciation for you taking the time to vote.”

But after election experts and Democrats raised questions about whether the offer violated the state’s election bribery laws, Musk deleted the post and said he would instead be handing over the checks to two people who would serve as spokespeople for his “Petition In Opposition To Activist Judges.” The new post also no longer said attendance would be limited “to those who have voted in the Supreme Court election,” as the original post had stated.

The appeals court rejected Kaul’s efforts on Saturday, noting that he hadn’t fully supported his application properly, so the judges denied his request. The Supreme Court also shot down his request.

BASIC BACKGROUND ON THE RACE: If you live outside of Wisconsin and have a limited interest in politics, you probably never heard of Susan Crawford or Brad Schimel. If you live in the state of Wisconsin, you probably know their names better than you know the name of your current pets.

(It’s also likely that you think all the Supreme Court will do is rule on when to set pedophiles free, given that seemed to be the gist of every attack ad on both sides of this.)

Like most court races, the Wisconsin Supreme Court election is supposed to be a non-partisan affair. As has become the case everywhere, that’s not entirely true, as both Republicans and Democrats basically pick sides and pour time, effort and cash into getting a candidate more to their liking onto the court.

Unlike most other statewide races in the country, people all over the place have taken a vested interest in whether Crawford or Schimel wins. According to a Milwaukee Journal-Sentinel analysis, people from all 50 states have dumped a record amount of cash into this election. The Brennan Center reported last week that the two campaigns and outside groups have spent more than $73 million on the race, which doesn’t account for whatever was spent since March 24.

The main reason is that whoever ends up winning will tilt the “non-partisan” court 4-3 toward a more liberal or more conservative side of the spectrum. With questions about gerrymandered state maps, women’s rights to bodily autonomy, state workers’ union rights, gun regulations and more likely coming down the road to the Supreme Seven, this race is seen as a really big deal for Wisconsin and beyond.

BASIC BACKGROUND ON FINANCIAL SPEECH AND ELECTIONS: In 2010, the U.S. Supreme Court voted 5-4 in the Citizens United v. the Federal Election Commission case that outside interest groups could spend as much money as they wanted to influence the outcome of elections via messaging of all kinds.

According to the Brennan Center, this led to the creation of giant “Super PACs” (political action committees) that wealthy interests could use basically steer election outcomes:

In other words, super PACs are not bound by spending limits on what they can collect or spend. Additionally, super PACs are required to disclose their donors, but those donors can include dark money groups, which make the original source of the donations unclear. And while super PACs are technically prohibited from working directly with candidates, weak rules that are supposed to enforce this separation have often proven ineffective.

The court in the Citizens United decision did note, however, that the law could limit money in politics if it was clear that the money was being used in a form of outright bribery, or  “quid pro quo corruption.” So, in short, Rich Dude/Dudette X can drop $500 billion into ads, mailers, events, social media posts and people wearing sandwich boards promoting a candidate for the Omro Dog Catcher Election, but they can’t hand $100 bills to voters outside a polling place for the purpose of buying their votes.

THE SMELL OF MUSK: Elon’s offers are clearly outside of the norm of what we’ve seen in politics to date (at least in recent years). To be fair, he’s giving out cash to people who sign a pledge that has no legally binding requirements and isn’t capable of creating any legally binding action if he reaches a certain number of signatures. In fact, people could take his money, use it to print up a boat load of Susan Crawford lawn signs and move on if they chose.

He also initially tried to skirt the rules meant to tamp down on bribery by making the two $1 million offers a kind of Publishers Clearinghouse Giveaway of sorts. His offer this time was for those folks who helped get the signature, which again, have no actual value in the broader sense of this election, so offering money for them is kind of like when the tooth fairy would pony up cash for your baby incisors.

What becomes a concern here is the psychological impact of reinforcing desired behaviors. The approach Musk is taking to get people to lean toward his liking is like Pavlov’s dogs, Skinner’s pigeons and Bandura’s bobo dolls all in one. Although the law has outlined strict rules for what is and isn’t bribery, psychological researchers have found the line between bribery and reinforcement to be a little fuzzier.

DISCUSSION STARTER: Where do you stand when it comes to the ideas outlined in the articles linked throughout here, particularly as they relate to the offering of money to complete a task like the petition Musk wanted people to sign? Is this a harmless stunt, a bribery attempt to undermine electoral legitimacy or something in between? Explain what you think and why and see if anyone can change your mind.

 

Whether you agree or disagree with Mahmoud Khalil, you need to watch his case

THE LEAD: Mahmoud Khalil, a graduate student at Columbia University and a legal U.S. resident, was picked up in an ICE raid Saturday and faces deportation. Khalil was a leading voice in the Palestine protests on the university’s campus last spring.

Khalil was detained Saturday night as he and his wife were returning to their Columbia University-owned apartment in upper Manhattan by officials from the U.S. Department of Homeland Security.

The agents told the couple that Khalil was being detained because his student visa had been revoked.

When his wife provided documents proving he was a green card holder, the agents said that was also being revoked and took him away in handcuffs, according to a lawsuit Khalil’s attorneys filed challenging his detention.

President Donald Trump discussed the matter in a social media post in which he supported the arrest and potential deportation, calling Khalil a “terrorist sympathizer” for his stand on the Palestine situation.

Secretary of State Marco Rubio concurred, saying Khalil’s protest actions were “aligned with Hamas” and thus it was acceptable to revoke his green card (and his marriage to a U.S. citizen, I guess) and deport him.

A court held up his deportation and his lawyers will be arguing Wednesday that he’s essentially being punished for exercising free speech.

 

DOCTOR OF PAPER FLASHBACK: We talked about the issues related to protests last year when a number of campuses were dealing with upheaval and cracking down on students who peaceably assembled. As we noted back then, you can’t just support free speech when it’s speech you like. The same is essentially true for all of the other aspects of the First Amendment.

In other words, if you’re cool with people standing up for Side A of an issue, you have to be cool with people standing up for Side B of that issue. As long as the protests and speech don’t run afoul of what the law has already stated as being out of bounds (fighting words, child porn etc.), the Bill of Rights protects those actions.

 

WHY YOU SHOULD CARE: You could easily make an argument that this is one guy, speaking out on a topic in a way that a lot of people don’t like, so it shouldn’t really matter.

You could make that argument and it would be both dead wrong and dangerous.

The actions here underlie a broader set of concerns for anyone who supports free expression. Earlier in March, the president noted he would crack down on colleges and universities that allowed for “illegal protests” to persist. It wasn’t clear what made something an “illegal protest” in the eyes of this administration, but I imagine that the translation would be “anything the president doesn’t like.”

Anyone who has an opinion about anything should probably be concerned about this approach, even if you disagree with everything Khalil stands for. Without legal protections for expression, it could be just a matter of time before whatever you think is worth talking about could land you in prison under some sort of trumped up charge.

 

DOCTOR OF PAPER HOT TAKE: Again, I don’t like a lot of speech or protests, and I’m pretty sure I wouldn’t agree with most of what Khalil has to say. That’s not the point of sticking up for his rights.

The law has long held that the government can’t suppress speech it doesn’t like, but it seems like we’re living in some sort of parallel universe right now where the government tends to do something beyond the pale and ask questions later. The Elon Musk line about how the administration will “make mistakes” but fix them up once they realize they made a mistake is a bad idea in general, but it’s even worse when it come to the inalienable rights associated with our country’s founding.

If the courts give the administration a pass and say, “Well, it’s just this one guy and, yeah, screw Palestine anyway,” it sets a dangerous precedent for when someone else upsets this administration. The cure for speech we don’t like is not to crush that speech. It’s more speech that presents a counterbalance to the original speech.

Even if the courts let this guy go, we still have the problem of how these actions have the potential to chill speech throughout the country. It’s like a bad parent smacking a kid in the head for voicing an opinion. That kid is probably not going to pipe up again, but the rest of the kids in that family are probably also going to keep their mouths shut.

That’s not how we’re supposed to roll as the United States.

Trump Is Limiting The AP’s Access To White House Events Because It Won’t Use His Preferred Noun When Discussing The Gulf of Mexico

THE LEAD: The Trump administration barred several journalists from the Associated Press from reporting opportunities in and around the White House over the past week for not calling the body of water to the south of the country the Gulf of America.

AP executive editor Julie Pace noted Thursday that AP had been shut out of multiple events, including an open news conference with Indian Prime Minister Narendra Modi, the signing of at least one executive order and the swearing in of Robert F. Kennedy, Jr. as the Health and Human Services secretary.

“This is now the third day AP reporters have been barred from covering the president — first as a member of the pool, and now from a formal press conference — an incredible disservice to the billions of people who rely on The Associated Press for nonpartisan news,” Pace said.

The dispute began Tuesday, when the AP was informed that it would be barred from attending White House events because of the organization’s decision to continue using the name Gulf of Mexico, not the Gulf of America, as Trump decreed in an executive order last month.

BRIEF RECAP OF THE SITUATION: President Donald Trump declared that the Gulf of Mexico should actually be named the Gulf of America, a declaration he codified with an executive order on Jan. 20. He doubled down on this declaration, when he deemed Feb. 9 the first “Gulf of America Day.”

Apple and Google maps have made the switch to this nomenclature, even as media outlets and foreign officials have pushed back on this move. (Apparently Bing followed suit, but nobody really noticed because… I mean… c’mon… It’s Bing.) The president of Mexico has threatened to sue Google over this change, while the AP and the White House apparently remain in a standoff over the issue.

Trump also made other name changes, such as shifting Denali back to Mount McKinley. In that case, the entirety of the mountain was within the U.S., so it didn’t require the international community to buy in. (Some folks in Alaska aren’t thrilled, to be fair, and the state’s senators are trying to get this undone.)

DEALING WITH TRUMP, AP STYLE:  The Associated Press is an international organization that operates in more than 100 countries, produces content in multiple languages and serves more than 1,300 news organizations daily, so even minor changes or small disputes can have major consequences. In addition, the AP style guide is the bible (not Bible) for journalists everywhere, so what they say, we all tend to use.

In this case, the AP tried to “split the baby” by both acknowledging Trump’s actions while also not letting 400 years of history and global tradition get scrapped with the stroke of a pen:

Screenshot

In short, “Here’s what we’ve always called it, here’s how it now impacts U.S. government stuff, here’s who can ignore it and here’s our best way forward.” Apparently, that wasn’t good enough for the Trump administration.

CAN TRUMP DO THIS (Part I) ?: The larger question of Trump’s right to rename the gulf unilaterally depends on the specific question being asked. As far as the U.S. government is concerned, yes, he can really do this and has. Reports indicate that both the Department of the Interior and the Geographic Names Information System (GNIS), the official federal database of all U.S. geographic names, are moving in this direction.

In terms of what can be enforced upon the rest of the world, no. The United Nations Convention on the Law of the Sea essentially established that countries have control of things like this only as far as 12 nautical miles from the coastline. (Mexico essentially makes this argument in its lawsuit against Google.) Also, as much as he might like it to be true, Trump does not dictate what everyone on the planet does. Therefore, his declaration has no jurisdiction beyond certain borders.

CAN TRUMP DO THIS (Part II)?: In regard to the issue of barring journalists from stuff, can Trump do it? Sure, and he’s done it before. In 2017, he banned The Guardian, CNN, the New York Times and several other media outlets from a “gaggle” briefing, based on coverage he didn’t like. In 2018, Trump folks barred CNN’s Kaitlan Collins from a Rose Garden event after she had questioned the president in a way that wasn’t taken well.

That same year, the administration revoked the media credentials of CNN’s Jim Acosta after an incident at a press briefing. (The White House reinstated the pass after CNN sued and a judge issued a temporary injunction on behalf of the network.) In 2019, he conducted a “mass purge” of journalists, restricting press access through “hard pass/soft pass” gamesmanship. Trump also just bounced a bunch of journalists out of their office space in the Pentagon, giving the space to outlets that give the administration more favorable coverage.

Generally speaking, the law dictates that the denial of a pass is within the rights of an administration, provided there is “an explicit and meaningful standard” to support its actions and “afford procedural protections.” That case did not say what it would take to revoke a pass, nor did it provide any clarity here in regard to who gets to go into the Oval Office or the Rose Garden or whatever.

DOCTOR OF PAPER HOT TAKE: There’s a lot to unpack here and it’s not entirely one-sided. As much as I hate having to discuss the First Amendment an “it depends” kind of way, at least this time, it doesn’t involve porn.

White House Press Secretary Karoline Leavitt is not entirely wrong in saying that a) covering the White House isn’t something everyone gets to do and b) the administration does have some leeway in how it controls who gets to go where when space is limited. I know I can’t just hop on a plane and demand access to the press room, let alone slide into the Oval Office for a chinwag with DJT, just because I’m writing a blog that dozens of people read.

It’s also no big secret that sources have always played favorites with media outlets. It would piss me off to no end when one of my reporters at the Columbia Missourian would call a police source about some story we had heard about and be told, “Nope… Nothing like that going on.” Then, miraculously, the Columbia Daily Tribune’s ancient cops reporter would somehow manage to break THAT EXACT STORY as an “exclusive” within two days.

I also used to hate the way that the Muncie Star-Press managed to have a great “buddy-buddy” relationship with the Ball State athletic office, so whenever something important would be going on (adding lights to the stadium, scheduling a nationally televised game), the Daily News kids would get shut out and the Star-Press would slather it all over the front page. To think the Trump administration would play more fairly with the national press than some yokel sources in the Midwest would with the local press seems to strain credulity.

Hell, it was so obvious he played favorites during his first term, John Oliver had some fun with it:

These kinds of things aren’t a blatant violation of the First Amendment, even if they feel petty and unfair.

All of that being said, I hate what Trump did here and I totally support AP’s position in regard to the coercive nature of this exclusionary maneuver. It does smack of favoritism, it does undermine their ability to spread information and it reeks of petty bull-pucky. I have a long-standing hatred for bullying, and that’s just what is happening here: “Do what we tell you to do, or else.”

This isn’t a new thing for Trump, nor will it be the only instance of it. I imagine there will be more than a few press passes getting yanked over the next few years, along with the obligatory lawsuits to get the Trump administration to back down. I also imagine that there will be additional significant efforts to cow the media throughout Trump’s reign. If there’s one thing this administration has consistently blessed with favor, it’s those who lavish unrelenting and uncritical praise upon the Dear Leader.

AP right now is in a game of “chicken” with the White House and I certainly don’t want the AP to back down. We could argue that nomenclature of this nature is petty and stupid (see the “freedom fries” debacle), but the bigger issue would be the press caving to power to curry favor. That’s the kind of loss of credibility that the AP could never get back once their reporters lost it. So, please, AP folks, for the sake of all of us out here trying to teach students how to do quality, unbiased journalism, fight like hell to get back what you have lost.

That said, the establishment doesn’t owe the AP a Snickers bar simply because they’re used to getting top-shelf treatment. I would argue that if you work for AP, you’re probably among some of the best, most-resourceful and dedicated reporters on the planet. You don’t get to the top of the heap like that be being spoon-fed and softly petted, so treat this slight like any other obstacle you would need to overcome.

I’d suggest you follow the lead from the folks getting the shaft at the Pentagon: “We’re going to work around this cheap ploy, because that’s what we do and we will not be deterred in holding the administration to account for its actions because that’s our job.”

 

A cussing meteorologist, a porn-star professor and a fan of racy rap: The Suicide Squad sequel of free speech cases (A Throwback Post)

I hadn’t intended to turn the first week back into a First Amendment showcase of sorts, but real life has a way of dictating content, which leads us to today’s installment of “Weird Free Speech Situations Theater.”

In this case, it is a settlement over what constitutes “unprofessional” social media posts for a pharmacy student:

A month after Kimberly Diei enrolled as a doctor of pharmacy student at the University of Tennessee, the college’s professional conduct committee received an anonymous complaint about her posts on social media.

The college reviewed her posts, which included racy rap lyrics and tight dresses, and concluded that they were vulgar and unprofessional. It threatened to expel her.

For the last four years, Ms. Diei has been fighting her school in court, arguing that her posts were fun and sex-positive, and unconnected to her status as a student. Now she has won a settlement: On either Wednesday or Thursday, she expects to receive a check for $250,000 — both vindication and relief, she said.

This situation, as well as the ones involving Joe Gow and Sam Kuffel had me thinking back to previous posts about the support of free speech and how the court cases involving it never are about benign speech. As Zach Greenberg noted in his interview with the blog, nobody tends to throw a fit when someone comes out as “pro-cute puppy photo,” so most free speech situations tend to be about things people find beyond the pale.

Thus, free speech advocates tend to end up with the “worst heroes ever,” to borrow a phrase from “The Suicide Squad” movie trailer. Here’s a look back at the first time we made that argument on the blog.

 

 

A rock star with a heroin problem, the “Bong Hits 4 Jesus” guy and a foul-mouthed cheerleader: The Suicide Squad of free speech court cases

A frequent joke told among lawyers is that the best case is the one with a carload of nuns as your client and a busload of priests as your witnesses. In most cases, however, it seems more like this scene from “The Wire.”

When it comes to First Amendment law, it would be great if we had more cases in which polite, articulate young people like Mary Beth Tinker who quietly wore a black armband to school to protest the Vietnam War. Her choice led to hate mail and threats, but also a ground-breaking Supreme Court case regarding student free-speech rights. And, looking back on it now, people can understand better her underlying concerns about the war as well as her relatively mild statement against it.

Tinker v. Des Moines (1969) established that students do not shed their Constitutional rights at the schoolhouse gate. It also provided protections for students who wish to express themselves against intrusion from school overreach.

Unfortunately, an upcoming case in which a high school student did her best “Scarface” dialogue on Snapchat could be the case that undoes a lot of those protections in a digital age:

In 2017, ninth-grader Brandi Levy said on Snapchat some version of what stressed-out students have been saying on the back of the school bus since the invention of buses: “Fuck school fuck softball fuck cheer fuck everything.”

The post was shared on a Saturday afternoon during a trip to the local convenience store, disappeared from Snapchat by Sunday afternoon, and caused no disturbance at school whatsoever—except to irritate the cheerleading coach, who banned Levy from the squad for a year.

She filed suit, and in June 2020, a federal appeals court ruled that school authorities violated the First Amendment by disciplining her for the off-campus speech. Now, the Mahanoy district is asking the Supreme Court to overturn that ruling.

The case doesn’t matter in regard to that single incident anymore. Levy is now a college student, the cheer team has had a complete turnover in terms of membership and nothing the court could do would change what happened in regard to the punishment levied at the time.

However, if the court decides to overturn that appeals court’s ruling, it could mean that schools can now actively monitor social media and punish students for ANYTHING that appears to be “objectionable.” If that doesn’t scare you, you probably had one of the six “really cool” high school principals I was always told existed somewhere.

Me? I dealt with a lot of nuns and balding guys who wore short-sleeve shirts with brown ties. This is terrifying…

This leads to the point of the post: It seems like we NEVER get the perfect Supreme Court case that perfectly showcases speech that deserves to be protected for the betterment of society. It’s never the student newspaper that was censored for reporting that the principal had stolen money or the kid with the bullhorn outside the school telling people not to eat cafeteria food because the workers were being abused.

It’s always something with an F-bomb, a nude pick or a drug reference that we get to stand behind and say, “Hey, look… You CAN’T censor this because… well… geez…”

We don’t get Superman, Batman, Aquaman or Wonder Woman as our defenders of freedom.

We get The Suicide Squad:

In other words, we get a “mental defective dressed as a court jester,” a “guy who wears a toilet seat on his head” and a “shark with hands,” to quote the red-band trailer I’m not allowed to show you here…

If you think I’m kidding about this, consider the following court cases on important topics:

The landmark case for online speech and defamation? Rocker/Actress/Woman I’d be most scared of meeting in a dark alley Courtney Love won and survived an appeal of her “twibel” case (Twitter plus libel) in 2014. Love, whose outlandish behavior and heroin abuse have long been the subject of media coverage, stated that an attorney had been “bought off” instead of helping Love recoup parts of her late husband’s estate.

A crucial Supreme Court case regarding speech at school sponsored events? Morse v. Frederick, also known as the “Bong Hits 4 Jesus” case. A student held up a sign at an event proclaiming the cryptic message. When the sign was taken away by school administrators, the student later sued claiming his First-Amendment rights had been violated. The SCOTUS ruled that schools have the right to remove pro-drug messages, even though students have some free speech rights at school.

The case that dealt directly with a reporter’s right to maintain confidential sources? Branzburg v. Hayes, which dealt with reporters being forced to disclose the names of sources who were manufacturing hashish.

And, of course, the case involving satire and hyperbole in regard to public figures comes from the apparent patron saint of this blog, pornographer Larry Flynt.

Now, the question of whether students can get smacked around for writing things on their own time on their own social media that school officials dislike comes down to one foul-mouthed 14-year-old cheerleader.

The problem with all of these cases is that it becomes so much easier to suppress speech that is unpopular, vulgar or otherwise disagreeable.

If the reporters in Branzburg were protecting whistleblowers who had uncovered some sort of dark plot by a foreign government to go all “Red Dawn” on the U.S., it would likely feel better to the courts to support their interests in remaining anonymous.

If the school was trying to suppress speech about the superintendent stealing money from the district to buy weed, maybe a “No Bong Hits 4 Superintendent Smith” sign would have garnered a different outcome.

If Sally Fields had tweeted about potential legal malfeasance (while wearing her “Flying Nun” costume), it might not have felt like the entire future of online free speech hinged on whether the defendant was going to lose her mind on the stand and start throwing things at the jury.

If the cheerleader had done her rant without the f-bomb, maybe the courts would be more inclined to side with her at every level.

However, we don’t get to choose the cases that decide our fate, which is why it’s important to make sure that we stand up for all speech because what one person thinks is a felony charge, others might consider a misdemeanor at best. In the mean time, keep an eye on this one, as it’s got a lot more at stake than a lot of people think.

Former UW La Crosse Chancellor and Porn Actor Joe Gow is Suing the UW System to Get His Professorial Gig Back

UW-La Crosse chancellor Joe Gow fired for producing porn

Former UW La Crosse Chancellor Joe Gow at a convocation of some sort, making sure not to go “Elon Musk” on everybody.

THE LEAD: Former UW La Crosse Chancellor and faculty member Joe Gow has filed a federal suit to undo his firing. Gow was fired from each of his positions after it came to light that he and his wife were doing porn and posting the videos online for public consumption.

The lawsuit argues the UW System’s decision to terminate Gow violated the First Amendment and flouted the UW System’s commitment to free expression.

“I think this is an important moment for free speech and I’d like to think this will result in a court saying you can’t fire someone for what they do on the internet on their own time,” Gow, 64, told the Milwaukee Journal Sentinel. “It sounds grandiose but maybe we can get people to rethink pornography.”

Milwaukee-based attorney Mark Leitner filed the lawsuit on Gow’s behalf on Monday, the first day of spring semester classes at UW-La Crosse.

 

BACKGROUND: As we previously outlined on the blog, Gow was removed as chancellor in late 2023 once the Board of Regents became aware of his hobby. However, as is the case with most faculty in administrative positions, Gow retained retreat rights that would have put him back in the classroom as a tenured faculty member of the communication department.

The regents apparently decided that the idea of Gow teaching students at a university he led for almost 17 years with few problems was going to be a bridge too far, so they stripped him of his tenure and fired him in 2024. At the time, Gow was in contact with the Foundation for Individual Rights and Expression (FIRE), which helped him find legal counsel for a potential suit.

 

BLOG FLASHBACK: In September, we did a Q and A with Zach Greenberg of FIRE, who was nice enough to walk through the issues associated with the case as well as why FIRE felt this was a First Amendment issue. You can give that a read here.

 

A  FEW UNPLEASANT REMINDERS ABOUT THE FIRST AMENDMENT:

  • The First Amendment is essentially content neutral. It’s not meant to protect expression people like. It’s meant to protect expression people DON’T like. As we explained when universities were trying to take sides on the Israel/Palestine situation, you can’t just defend free speech when you like the speech.
  • To overcome the protections afforded in that amendment, it requires some very specific things: Fighting words, true threats and child porn are among the most clear cut. Something making someone feel uncomfortable or what might happen at some distant point in the future doesn’t clear that bar.
  • The First Amendment is about governmental action, which includes public institutions. As part of the First Amendment to the Constitution, the government generally does not possess the right to curtail free speech or free press. If Gow were working at Marquette University when this happened, he’d be out on his ass, no questions asked.

DOCTOR OF PAPER HOT TAKE: Long story short, this is essentially a game of “chicken” and has been since Gow’s porn stuff first became public knowledge.

Gow almost HAD TO sue, as to let things sit as they were would essentially be saying, “The UW System was right and I shouldn’t have been doing the porn thing.” In the same way, the university system almost HAD TO fire him and then brace for impact, because it’s not like the folks at the State House and State Senate aren’t already looking for 10,002 reasons to cut higher-ed funding in Wisconsin. To let this go would have every fire-and-brimstone legislator screaming about how not a dime of state money should fund “the UW Porn System!”

I also think the idea of him doing porn just makes the regents and Gow’s colleagues feel awkward and icky, so they don’t want to have to deal with him any more. I get it, in that nobody with a half-dozen siblings likes looking at their parents and being forced to think, “Wow, Mom and Dad really got busy a lot…”

Let me be clear: I have no problem with two consenting adults doing whatever they want to do together, so long as it’s not breaking the law. I also wouldn’t want to think about my boss doing a Porn Hub channel, nor would I want to see it. However, just because I don’t like something, it doesn’t follow that it shouldn’t exist and the First Amendment serves to protect the rights of all people in that regard.

I understand that certain things can and should lead to people being fired, but I tend to think of most of those as legal matters. Felonies tend to reflect poorly on individuals and therefore the companies that employ them, so that makes sense. Misdemeanors? I guess it depends on what it is, but it is up for debate. If I fail to yield the right of way to a roaming cow out here, I could be fined, but I don’t think I should be fired. Public urination? Yeah, that doesn’t look so great, so maybe…

Gow’s hobby used to be illegal back in the late 1960s and early 1970s, when the possession, creation and dissemination of pornography was illegal. You know what also used to be illegal back then? My hobby: Pinball.

From the 1940s to the 1970s, laws prohibited the silver-ball games due to their influence of “juvenile delinquency” as well as fear that they were morally bankrupt and would lead to gambling and other vices. In fact, it wasn’t until 1974 that the Supreme Court ruled that pinball was fine and it took until 1976 for New York City to start acting right. That was after both the Stanley v. Georgia ruling and the Miller v. California rulings that made porn passable in the country.

Back then, both were criminal offenses. Today, it’s totally cool for me to tell my students, “Hey, I’m working on a pinball machine I just bought,” while it’s less acceptable for Gow to announce in a classroom, “Hey, I’m working on a new film for Only Fans!”

The one thing I’m constantly left wondering in situations like this one, and the Sam Kuffel case we discussed Monday, is this: Exactly how much of my life does my employer have a right to control and who draws those lines?

The Sam Kuffel Kerfuffle: CBS58 in Milwaukee “Parts Ways” with a Meteorologist Who Complained about the “Elon Musk Nazi/Not-A-Nazi Salute” on Social Media

Sam Kuffel, meteorologist for CBS 58 in MilwaukeeSam Kuffel via the station’s old Facebook post.

THE LEAD: CBS58 in the Milwaukee TV market “parted ways” with meteorologist Sam Kuffel after the weather caster posted her displeasure about Elon Musk’s “hand gestures” on her social media account.

The 31-year-old graduate of UWM had been doing TV weather reporting around the state of Wisconsin since about 2016. The posts she made after the inauguration were being lambasted on Milwaukee conservative talk radio.

In one post on her personal Instagram account, Kuffel posted a picture of Musk at the podium, saying, “Dude Nazi saluted twice. TWICE. During the inauguration.”

She added, “You (expletive) with this and this man, I don’t (expletive) with you. Full stop.”

Kuffel then posted a GIF from “It’s Always Sunny in Philadelphia” on Instagram along with the saying, “Screw that old (expletive). He’s a Nazi.”

By late Tuesday, she had made her Instagram account private.

Kuffel told the Milwaukee Journal-Sentinel on Friday that she was, in fact, fired for the posts. She noted that she was “just voicing my personal opinion” on her private Instagram account, adding she was still processing the situation and weighing her options.

BACKGROUND: In case you were on Mars or one of the other planets Musk is apparently planning to conquer and missed it, Musk spoke after President Donald Trump’s swearing in and made two sweeping arm gestures.

For the sake of bending over backwards to provide a benefit of the doubt, let’s just say that those gestures had the same movement, angle, finger-stretch and general stridency associated with the “Sieg Heil” salute used during the Nazi Regime.

Musk repeatedly makes gesture likened to 'Nazi salute' at Trump rally

Unless there is a guy out of frame getting ready to hi-five Musk for an “and one” play during the NBA playoffs, this doesn’t look all that great.

The Anti-Defamation League asked everyone to take a breath and relax after the “awkward gesture,” noting that we should all be giving each other some grace in this time of transition. The ADL later condemned Musk, grace period be damned,  after he took to Twitter/X and made some Nazi jokes about the situation.

Musk previously took heat for the antisemitism he allowed to foment on his Twitter/X platform, as well as his retweeting (or whatever we’re calling it now) of antisemitism. In 2023-24, as part of his “apology tour,” he ended up visiting Israel as well as taking a tour of the Auschwitz death camp.

In addition, he has endorsed the AfD, the far-right wing of German politics, and recently told an AfD rally audience that they need to “move past” the history they have related to the Nazi movement and get over “past guilt.”

A FEW BASIC (POSSIBLY UNPLEASANT) REMINDERS ABOUT FREE SPEECH: When a situation like Sam Kuffel’s hits the public eye, comments related to free speech, free press and other similar “rights” start flying all over the web and social media. To better deal with the situation, it’s important to keep a few basic rules of the game in mind:

The First Amendment is about the government: As part of the First Amendment to the Constitution, the government generally does not possess the right to curtail free speech or free press. What we’re talking about in the Kuffel case is a private enterprise making a decision about the activities of one of its employees. That’s different.

Law and ethics are completely different things: People have complained in various forums that the station should have stuck up for one of its own and kept Kuffel on the air. The question of if the news station SHOULD have fired her is one of ethics. The question of CAN the station fire her is one of the law. (See point one)

SOME ADDITIONAL UNPLEASANT REMINDERS: This situation mixes several key reminders I have to give my students each semester. These include:

  • Free speech (even when properly understood vis a vis the First Amendment) does not mean consequence-free speech. You can publish without fear of government intervention, but many other things can happen to you in court or the court of public opinion in terms of consequences for what you say.
  • Despite Kuffel’s contention that it was a “private” account, there is no such thing as private social media. Just ask this person. Or this person. Social media is available to EVERYONE and even if you have your settings locked on “double-super-secret-private pinky swear,” there is still a good chance it’s not going to remain “just among friends.”
  • In most cases, where you work has a social media policy in place that is meant to keep your posts as sanitized as a bleach bath and as sharp as a bag of cotton balls. Know what it says before you violate it and find yourself looking for work.
  • Think before you post.

DOCTOR OF PAPER HOT TAKE: Getting rid of Kuffel probably did a lot more harm than good in a number of obvious and oblique ways. I could do this for days, but let’s pick out a few key ones:

The optics are bad: Nothing says, “We are a proud member of the Fourth Estate,” like tossing the WEATHER PERSON under the bus after she made a stupid social media post. What? Were the higher-ups at the station worried that her disdain for Musk might lead to inaccurate forecasts over the next few months? (Spoiler Alert: She’s doing the weather in Wisconsin. It’s cold, colder and “holy crap, are your nostrils freezing together?” frigid.)

Seriously, you’re talking about a person best known for a weird weather beef with Erin Andrews. Her most recent piece for the station was about “pancake ice.” If you really worry about bias on the staff, start by getting Lance Allen to ask harder questions at the Packers press conferences.

If the theory is that if anyone at the station does something bad, then everyone at the station comes into question, OK. However, how is it that the station was totally cool hiring a journalist who got arrested at a Brewers game after a fistfight with another reporter? (Side note: Don’t include the phrase “is no stranger to Milwaukee, though” in his official station bio.)

Also, if you’re willing to dump the weather person, what happens when a news reporter wants to do a story that might lead to some upset people? If I worked there, I’d be asking for the “puppy and kitten beat” for the next few years.

You essentially killed a fly with a sledgehammer: Most of the experts that the news reports tried to find a balance in their comments. That said, they tended to agree that a) if there’s a policy that says “don’t call someone a Nazi on social media, even if they are a Nazi or we will fire you,” Kuffel likely had no cover and b) firing her seemed like overkill.

On point a, it’s likely not a policy like that. It’s probably some mushy “morals and standards” thing that the lawyers built into everyone’s contract to give them the right to fire anyone that the station felt did the company dirty. In those cases, it’s “fire her and let’s see if she’ll fight it.”

On point b, the station really did try to kill a fly with a sledgehammer. Kuffel was essentially saying what a lot of people were saying, although she used some “saltier” language to do it. It wasn’t on air, it wasn’t on the station’s social media and it probably wouldn’t have been a huge deal if we hadn’t suddenly become “Snitch Nation.” (More on that later.)

When local conservative radio host Jay Weber called Tim Walz’s neurodivergent son, Gus, “a blubbering bitch boy,” on his social media account, he got a two-week suspension. Greg Doyel of the Indy Star received a similar “time out” after a press conference exchange in which he awkwardly requested Caitlin Clark to flash him a “love sign” after each game. The Washington Post’s Dave Weigel only got a month suspension for a retweet  that noted “Every girl is bi. You just have to figure out if it’s polar or sexual.”

The last instance I can find of a media outlet firing a journalist in a way that drew public attention is when New York Magazine cut Olivia Nuzzi loose. In that case, she’d profiled RFK Jr. but also had been sexting him and sending him nudes, according to media reports.

Google “reporter suspended” and “reporter fired” and you’ll a good number of examples to decide which category Kuffel’s situation best mirrors.

 

You embolden Snitch Nation: This is the kind of thing that probably wouldn’t have gotten much traction, if not for the amplification of outrage that is local talk radio. Conservative media host Dan O’Donnell basically lit the “Bat Signal” in this case, criticizing Kuffel’s posts and working his audience into a lather over it. At that point, the station decided it had to do something to move out of the crosshairs of O’Donnell and crew, so they canned Kuffel.

This sets a precedent that any decent third-grade teacher will tell you is bad: Someone does something that’s maybe not all that great and a giant tattletale starts yelling “OOOHHHH! MS. SMITH! MS. SMITH! MS. SMITH! DID YOU SEE WHAT SAM DID?????,” thus getting everyone else to start yelling, “OOOOHHH!!! SAM’S IN TROUBLE!!!” Thus, rather than apply grown-up logic, you overreact and whip out the punishment stick to get the noise to stop.

What that does is a) make everyone afraid of the loud tattletale and b) make it seem like being a tattletale is how everyone should act. Not a great idea. I can’t wait to find out what happens if O’Donnell gets a whiff of this blog post…

(SIDE NOTE: You’d think a guy with high honors at a top-flight law school and a background in media himself would have better things to do than bullying a local meteorologist, but maybe that’s just my take…)

Letting loud idiots dictate your behavior doesn’t eliminate the problem. It literally leads to much bigger ones.

A MODEST PROPOSAL: As I was talking to Mom last night, she asked when the blog would be coming back and if I’d be covering this. After I assured her it was already half written, she asked what I thought would happen next on this. My answer is probably too logical and easy to make happen, but here it is:

If I had control of Weigel Broadcasting Co., CBS 58’s parent company, I’d quietly approach Kuffel and offer her another job at one of the other affiliates in the network, with the promise that Kuffel won’t sue for wrongful termination. This takes a potentially ugly legal battle off the table, gives Kuffel essentially a “suspension” instead of the death penalty and the company gets to keep a solid broadcast meteorologist.

I would also review the social media policies for the entire company and make sure a) they’re air tight, b) everyone gets a refresher course and c) the penalties for whatever will happen get spelled out clearly. This might also be a good time to let the news staff know where the network stands on backing its reporters if things get dicey or if anyone throws up a hissy fit. Or a Nazi salute.

The Universities of Wisconsin System is trying to steal faculty’s copyright rights to educational material. Please help fight this stupid power grab.

(The system says, “We would never look to diminish your rights or take your hard-earned work away from you.” What the system actually does is more accurately depicted in the scene above.)

THE SHORT, SHORT VERSION: The Universities of Wisconsin System is trying to rewrite its copyright policy and assign itself the rights to the educational work and scholarly materials faculty create. If this goes through, faculty who have spent years building and improving their courses could get the shaft and I have no idea if I’ll be able to share stuff that I’ve always shared with you.

If you think this is as stupid as I do, please email system President Jay Rothman at president@wisconsin.edu and tell him not to let this policy pass.

 

THE LONGER, MORE NUANCED VERSION: Here’s a deep dive on the way the system is trying to recreate its copyright policy in a way that disenfranchises its faculty:

THE LEAD: The Universities of Wisconsin has decided to rewrite its rules involving intellectual property, giving the system total ownership over pretty much everything faculty create:

The UW System is proposing a new copyright policy that professors say would eliminate faculty ownership of instructional materials. The revisions are stoking alarm among professors statewide who say such a move would cheapen higher education into a mass-produced commodity.

“This policy change is nothing less than a drastic redefinition of the employment contract, one that represents a massive seizing of our intellectual property on a grand scale,” professors from nine of the 13 UW campuses wrote in a recent letter to UW System President Jay Rothman. “It would allow any UW campuses to fire any employee and nonetheless continue teaching their courses in perpetuity with no obligation to continue paying the employee for their work.”

Aside from owning faculty syllabi, lecture notes and exam materials, UW would also have ownership rights over the scholarship faculty create:

A draft of the new policy, obtained by the Milwaukee Journal Sentinel, would eliminate existing copyright language and replace it with the assertion that UW System holds ownership of both “institutional work” and “scholarly work.”

<SNIP>

“Scholarly work” includes most of what professors produce, such as lecture notes, course materials, journal articles and books. The UW System transfers copyright ownership to the author, as is customary in higher education, but notes that it “reserves” the right to use the works for purposes “consistent with its educational mission and academic norms.”

 

DOCTOR OF PAPER HOT TAKE: Given that I’ve got about a dozen textbooks in the field, I edit a journal that needs scholarly work to keep it running, I spent seven years crafting hundreds of blog posts and that I’ve built a ton of courses over my nearly 30 years of teaching, this was basically my calm, metered reaction:

beaker from the muppet show is screaming with the words time to freakout above him

I’ve already sent a copy of the proposal to Sage for its team of lawyers to go over, so I’m hopeful that I receive an answer along the lines of, “Calm down… Have a Diet Coke… This isn’t going to destroy what you’ve spent decades creating…”

In the meantime, let’s lay out how stupid and problematic this is:

The quality of your courses depend on the people you’re pissing off:  We essentially went through this in my media-writing class today and a collection of sophomores and juniors understood it, so I’m hoping it might make sense to the Board of Regents.

I proposed the following scenario to one kid in the class: Let’s say you turned in a really good story as an assignment for this class. In fact, I thought it was so good, I took your name off of it, put my name on it and submitted it to the local paper. The paper then paid me $50 for the story.

I then asked the kid, “So, given that every time you turn in something good, I’m going to take it, put my name on it and make money from it, how likely are you to put forth your best effort in this class?”

The kid said, “There’s no way I’m going to do anything good for you anymore.”

Right. So, let’s play that out here: If every time I work REALLY hard on making good stuff for my class, the U is just going to claim it as its own, why would I bother to do anything more than the bare minimum to make my class work?

I guess you could make the argument that pride in our work and a desire to make things better for our students could inspire us to do great things, even in the face of a naked power grab by the system, but if you’re going to treat us like mercenaries, we’re going to behave that way.

This will stifle innovation, limit interest in developing new courses and create a general sense of animosity among faculty. It will also likely inspire professors to find new ways to hide stuff from the administration folks, as one person on social media suggested to me:

This stuff isn’t a product, but rather a process: Inherent to the system’s argument is the basic premise of work product: You built this stuff while you were employed by us and required to do so. Therefore, since we paid you for this, the stuff is ours.

That works in the private sector, where we’re tasked with specific outcomes and granted special provisions to create this kind of work product. For example, I know that when I worked at the Wisconsin State Journal, I wrote a lot of articles that the paper published. Implicit in my employment agreement was the premise that I was acting on behalf of the paper, writing things that the paper tasked me to write and publishing those things in a copyrighted publication. They own that stuff and I’m cool with that. I don’t think I’m ever going to want to republish a weather story I wrote in 1996, and if I did something cool I wanted to show my students, that’s acceptable use.

However, when it comes to my media-writing class, I didn’t get hired to write lecture notes and syllabi for that class. In fact, what I wrote was a tweaked version of something I’d been working on for decades. I’d drafted some of this conceptual stuff when I was working at UW-Madison, improved upon it when I was at Mizzou, reconfigured it at Ball State and then adapted it here. This isn’t like you hired me to bake a cake for your birthday. This is a tree I’ve been growing and tending for years and years.

 

The material might not be UW’s to steal: Even if you don’t buy the argument above, the instructors might not own the material they’re using in the first place.

Textbook publishers aren’t just sending out desk copies of a dead-tree books and telling fledgling professors, “Vaya con Dios.” They actually build a ton of back-end stuff into the educational packages they provide these days, which includes a lot of the stuff the system is trying to get its grubby little paws on.

I know for my books at Sage, we have sample syllabi, PowerPoint slides for lectures, notes for instructors, exercises and test banks crammed with questions. I might even be forgetting some of the stuff we provide.

(Shameless Plug: Sage really is amazing when it comes to this kind of stuff. If you ever need a book, check these folks out first, especially if you need some help with the shaping and molding of the entire class experience.)

These things are available to instructors because Sage built them to go along with the authors’ textbooks. The professors can use them as they are, add stuff, cut stuff or otherwise tweak what they receive. That said, it’s not theirs to sell or give away. Sage holds the copyright for this stuff and I imagine Sage and the other book publishers who pour a ton of time and resources into building these things would be more than a bit peeved if the UW System tried to claim it as its own.

 

The Coy and Vance Duke Theory of Education: When I was a kid, I loved “The Dukes of Hazzard” television show, which ran every Friday for about seven or eight years. The show involved two cousins, Bo and Luke Duke, getting into scrapes with the corrupt law enforcement of Hazzard County and doing amazing car chases in their 1969 Dodge Charger. Along with patriarch Uncle Jesse Duke and the lovely cousin Daisy Duke, the boys were “makin’ their way, the only way they know how,” to quote the theme song.

It was a simple show that drew a good audience and it seemed to work well. However, around the fifth season, John Schneider and Tom Wopat (who played Bo and Luke, respectively) got into a contract dispute with the studio over salaries. Rather than pay them and move on with life, the studio had the idea in its head that the car (the General Lee) was actually the star of the show, so it didn’t matter who was driving it and that they didn’t need these two pretty boys at all.

Enter new cousins: Coy and Vance Duke.

If ever there was a knock-off of a brand name, this was it. Like the original Duke Boys, one was blonde, one was brunette. They essentially wore the same wardrobe, had the same catch phrases and did the same insane driving stuff. That said, the ratings took a dump and after one season, Bo and Luke “returned from driving the NASCAR circuit” and Coy and Vance ended up fading from memory.

What the universities are doing here is essentially the same kind of thing. They figure, “Well, hell, if we have the notes, the syllabus and the PowerPoint slides, we don’t really need the professor who created them at the front of the room.” These folks assume that once we decide to leave, retire or whatever, they can just plug in an adjunct at a fraction of the cost and things will run like a Swiss watch.  And that’s not just me being paranoid, as other folks see it as well:

I pretty much know my notes aren’t going to be helpful to other people as I wrote them based on a lot of my experiences in the field. Notes like (BUS FIRE STORY GOES HERE) or (EXPLAIN DRUG DEALER SHOT THING) probably won’t work for a random Coy or Vance they bring in to teach my class after they decide they don’t need me anymore.

 

HERE’S WHY YOU SHOULD CARE (AND WHAT YOU CAN DO ABOUT IT): One of the biggest reasons I’m worried about this is because it impacts what I can do with my materials. That’s also the main reason why I think you should care about it, too.

I never took this job to get rich and I certainly don’t like the idea of coming across like Daffy Duck when he found the treasure room:

However, when I know stuff is mine to do with as I please, that tends to benefit a lot of other people as well. Whenever someone shoots me an email and says, “Hey, how do you organize your class?” I’m always happy to give them a copy of my syllabus. When someone needs an assignment I’ve built, I’m glad to share it with them or on the blog.

When we went into COVID lock down, I basically dumped everything I ever did that I thought would help people into the Corona Hotline section of the blog for free. All those goodies remain there to this day, so feel free to help yourself.

If this policy passes, I might not be as free to offer that kind of generosity any more, and that would really tick me off.

So, here’s how you can help me remain capable of helping you. The university system has extended comments on this until Dec. 13. If you are part of the UW system, you can use this link for sure to register your thoughts. (Not sure if it works for those of you elsewhere.)

If you can’t use that link, here is another option:

This is Jay Rothman, the president of the Universities of Wisconsin system. Feel free to call him at the number above or email him at president@wisconsin.edu and tell him to leave the copyright in the hands of the professors, instructors and students.

I appreciate the help and I’m sure my colleagues throughout the system do as well.

 

Indiana’s incoming Lt. Gov. Micah Beckwith threatens a student newspaper for telling its readers what people who worked with Donald Trump said about Donald Trump

(I don’t think Indiana Lieutenant Governor-elect and far-right pastor Micah Beckwith understands how the First Amendment works. I could teach him, but I’d have to charge…)

THE LEAD: Shortly after being elected as Indiana’s next lieutenant governor, Micah Beckwith decided to take his newfound power out for a test drive by threatening the Indiana Daily Student newspaper with censorship:

WHO IS THIS GUY? Beckwith is a 42-year-old, hard-right Republican, who has never held any political office prior to winning the lieutenant governor position. He came in third in 2020 while running for a U.S. house seat in Indiana. He graduated from Huntington University, a private college affiliated with the Church of the United Brethren in Christ.

After graduating with a business/economics degree in 2005, he worked for two years with EmbroidMe and two more as a “Co-Owner” of an LLC. After that, he found his calling as a pastor for the White River Christian Church. After five years there, Beckwith took a gig as a pastor at Northview Church in 2014. Critics deemed him a “white Christian nationalist,” who has compared vaccines to rape, opposes all LGBTQ issues and has engaged in book banning. He also runs a podcast called “Jesus, Sex and Politics.”

While campaigning, he threatened to fire any state employee who works with his office who uses pronouns in their email signatures, something Beckwith gamely tried to walk back later. Beckwith also referred to his Democrat opponents as evoking the “Jezebel spirit,” a sexist and racist term that reaches back to the Jim Crow South.

In short, an overall fun guy…

 

A QUICK BREAKDOWN: Here’s a quick look of how this situation is dumber than a bucketful of hair:

First, the students did not call Donald Trump these things. They literally QUOTED people who WORKED WITH TRUMP on the cover of the paper to make a point. If he looked at the people who said this stuff, I have a hard time believing Beckwith could get away with calling ANY of them “woke.”

Even more, people who are more politically aligned with Beckwith are pointing out on X how he completely misread this situation:

Screenshot

(Let’s also sidestep the whole “this is what your taxes are paying for” thing, as a) they are not, b) even if they were, financing a free press isn’t a bad thing and c) there are far dumber things tax money goes toward…)

Finally, the First Amendment guarantees the right to a free press, unfettered by the whims of governmental figures. Punishment for free speech of this kind is not allowed in this country (whether we’re truly a “democracy” or not). It’s unclear how Beckwith will “stop it for them” but I doubt it would be legal.

 

COMMENTS ON THE SITUATION: I reached out to co-EICs Marissa Meador and Jacob Spudich for a comment on the controversy and they were nice enough to respond:

“While we welcome criticism of our newspaper and its content, we are staunch defenders of the First Amendment and the freedom it grants to the press — including student journalism. Our front page clearly attributes the quotes to former allies of Donald Trump, which we collected from several articles across the New York Times and CNN. Beckwith’s statement implying he will attempt to control or suppress what we publish is deeply concerning, not just for staffers at the Indiana Daily Student but for our constitutional principles overall.”

I messaged Beckwith’s office with several questions and a request for comment. I received nothing to this point, but if I do I’ll post it here. (Don’t hold your breath on this one…)

Still, my favorite response of all of this came from the admin at Indiana University. As we covered in a four-part series last month, the Media School was trying to force the IDS to be part of a converged media environment under its rank and dominion. When this thing hit, here was the university’s response:

When asked if IU had any comment on Beckwith’s claims about IU and his potential action toward the IDS, IU spokesperson Mark Bode said “The Indiana Daily Student is editorially independent from Indiana University.”

In case you are unfamiliar, that’s what it sounds like when someone jumps ship…

DOCTOR OF PAPER HOT TAKE: This is the kind of ham-handed, saber-rattling stupidity that comes from people who claim to love this country but consistently fail to understand what our country actually protects and allows. The same freedom of speech that allowed Donald Trump to call Kamala Harris “a shitty vice president” and allowed Beckwith to refer to his opponents as having the “Jezebel spirit” also protects speech that Beckwith DOESN’T like.

I could also go back to that famous line about never picking a fight with someone who buys ink by the barrel, and add that you shouldn’t take on a media outlet that has 10 times the number of followers you do on X.

I often get responses to posts like this calling me “an academic liberal” or a “lefty professor,” both of which are not only untrue, but so far afield they’re likely to make my mother laugh so hard she could pass an entire Subway footlong through her nose.

In truth, I’m neither left or right, but I am definitely anti-bully and anti-hypocrite. I see this guy as being in both zones, so that’s why he really needs a reality check.

ACTION OFFER: If you want to tell Beckwith what you think about this, you can hit him up on Twitter/X, or email him through his campaign website here. Maybe if he hears enough from enough people, he’ll learn something.

That said, the guy literally thinks that Jesus pushed him to take the Beckwith Model of Intolerance and Stupidity ™ to the political sphere, so I somehow doubt he’s going to back off.

“Is this the hill you are willing to die on?” When to fight back against abject stupidity (A throwback post)

A number of events formed the confluence for this throwback post. First, the situation at Indiana University, where the Media School is forcing choices upon the staff of the Indiana Daily Student, WIUX and IU Student Television. The students there, particularly those in the IDS, are not thrilled about this and I’ve had a conversation with a few of them about that.

(I had planned to do a quick Q and A with the IDS folks and post that right after the initial post I put together on this. However, as I dug deeper, this whole thing got officially out of hand. I’m working on a series I hope will be ready next week. Don’t worry, IDS folks. I haven’t abandoned you. It’s just that there’s a lot more weird than meets the eye.)

Second, I spoke to the UWO volleyball team last night about their vision for the rest of the season. Coach said they were tired, beaten up and not sure of themselves in some cases. In discussing their approach and how best to meet some goals, I broke out the titular phrase listed in the headline.

Third, we’re still facing SLAPP suits and it’s hurting media outlets as they are forced to respond to nonsense. An appeals court ruled in favor of the Wausau Pilot & Review in a case where a politician claimed the publication libeled him by reporting he used an anti-gay slur. The politician lost the case on the grounds he was a public figure, something patently obvious to anyone who knows libel law. Still, this drained time and funding from the publication. Although a Go Fund Me drive and attention from the NY Times helped with the legal fees, the editor said the paper had to refrain from hiring due to the impact of the case.

Finally, I ended up spending time earlier this month with Allison and Tony at their place in Michigan. Somewhere in the calm, cool morning, surrounded by pines as big as skyscrapers, we were talking and realized we’d known each other for more than 30 years. That’s a lot of life and a lot of opportunities to pick a hill or two to die on. As we reminisced, it hit me that we must have picked the right hills, or at least avoided the wrong ones, to make it this far and still be the best of friends.

Enjoy.

 

SLAPPed around: How people with money who dislike your work can make your life miserable (legally)

About a year ago, we talked about the legal triangle that existed between coal magnate Bob Murray, comedian John Oliver and a 7-foot-tall squirrel named Mr. Nutterbutter.

The short version of this was that Oliver did a big piece on the coal-mining industry, in which he called out Murray’s company and made fun of the 79-year-old for a variety of things he did and said. Murray filed suit in West Virginia, claiming Oliver defamed him and seeking not only damages (to be specified by the court), but also a permanent injunction barring Oliver from ever broadcasting the piece again. It also sought to eliminate all copies of the “Last Week Tonight” story from public viewing.

A year ago, the state threw out the case against Oliver and HBO, stating that this was satire in some cases and free speech in all cases. (I still think the greatest legal argument came from the amicus brief filed by the West Virginia ACLU that noted, “Anyone Can Legally Say, ‘Eat Shit, Bob.’”) When the court tossed the case, Oliver let his fans know about it in a truly “Last Week Tonight” fashion:

Contrary to the title of that clip, however, Murray hadn’t given up the ship quite yet. He appealed the decision to the state’s supreme court before eventually dropping the case recently. Oliver then finally made good on his 2-year-old promise to tell us “the whole story” about what happened with the suit.

(Normally, I would upload the link to the piece here, but I think my publisher would kill me in this case if I did so. I have been told repeatedly that “students at small religious institutions” read this blog as part of their homework. Let’s just say that the dancing and singing number at the end is “a lot.” Feel free to find it on your own on YouTube.)

Oliver, however, didn’t spend all 25 minutes of the main story on a self-congratulatory Broadway-style number that pushed satire into a completely incredible stratosphere. His main point was about the way in which people with money can engage in ridiculous lawsuits to crush dissent, which is something of serious concern to journalists these days.

Strategic Lawsuits Against Public Participation, or SLAPPs, use the legal system as a sword as opposed to a shield. The goal of these, according to the Public Participation Project, is to crush free speech with lawsuits that have no merit:

SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits. SLAPP filers don’t go to court to seek justice. Rather, SLAPPS are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources.

In short, even if you win the point as the target of one of these SLAPP suits, you lose because you go broke. We covered this kind of situation when we talked about the small-town Iowa newspaper that went after a police officer who had been showing waaaaay too much interest in underage girls. The cop sued for libel and lost in a huge way. However, the paper ran up a six-figure debt defending itself and turned to a GoFundMe campaign to try to save itself.

In Oliver’s case, it cost about $200,000 to defend the coal piece and led to a tripling of his libel insurance premiums. And that was BEFORE he ran his giant Broadway number that went even further in talking crap about Bob Murray.

About 30 states have anti-SLAPP laws on the books now, which try to cut this kind of nonsense off at the pass. Although they vary from state to state, the gist of anti-SLAPP laws is that the person being sued can ask the court to view the story in question as being in the public interest (or at least free speech). It then is the plaintiff’s job to show that the suit has merit.

If those folks can’t meet that burden and it becomes clear it’s a SLAPP suit, the case gets tossed. In some cases, the law calls for the plaintiff to cover all legal bills derived from this stupid exercise.

However, not every state has these laws (Murray sued Oliver in West Virginia for precisely that reason) and not all laws are equally helpful to journalists. This makes life a little dicey for you if you want to take a shot at someone who has probably done something wrong but is likely to be extremely litigious.

Every time you ply your trade, you run the risk of being sued, regardless of if you did something wrong or if someone is just being a chucklehead. With that in mind, here are a few things to think about when it comes to SLAPPs:

IT’S NOT A SUIT UNTIL IT’S FILED: My good buddy Fred Vultee used to say this a lot on the copy desk when a story about someone threatening to sue would come across his desk. His point, and it’s a good one, was that anyone can threaten anything. Until paperwork is filed, all this huffing and puffing does is create a lot of wind.

As we pointed out in earlier posts, you shouldn’t panic and try to run away whenever someone threatens you with a suit. Instead, you should see what it is that is upsetting that person, if that concern has merit and if something needs to be done to resolve the concern before it gets too far down the road. If you’re wrong, an anti-SLAPP law isn’t going to help you.

As the Reporters Committee for Freedom of the Press points out, anti-SLAPP laws aren’t meant to solve every legal problem for journalists. They are just one more tool in your toolbox that can be helpful when a specific situation comes up.

If you’re right, and it become clear this person is just trying to mess with you, then you can start thinking about lawyers, laws and SLAPP stuff.

DOES SOMEONE HAVE YOUR BACK?: When we talked to Alex Crowe of The Great 98 a year or so ago, he found himself in the middle of what could be considered a SLAPP case. He reported on a messy police situation, which included a reference to a drug bust and a cop’s kid. The officer involved threatened to sue unless the station scrubbed its website of all stories involving this.

Although point one really applies here, sometimes, just the threat of a suit is enough to make people up the chain nervous about sticking their necks out for you. In Crowe’s case, the first inclination of the people around him was to back off. He did, however, know that if he could protect himself and the station without draining every resource from the organization, he would still be in decent shape. That’s where the RCFP came into play. The folks there provided him with legal advice, some pro-bono counsel and a chance to push back at the threats. That was enough to put the kabosh on the whole thing.

Organizations vary as do bosses. I’ve worked for people who would step in front of a bus for me. I’ve also worked for people who would not only push me in front of a bus, but would be more than glad to drive it over me a couple times if it kept their keesters out of the fire. This was the determining factor for a lot of what it was that I was doing in terms of fighting with angry sources, disgruntled subjects and other folks who were potentially litigious.

If you know where you stand with the people who might or might not stand with you on a situation, you at least have a sense of how scared you should be going forward. For all of his zany antics, something tells me that Oliver had more than a few conversations with his bosses at HBO about what might happen as a result of going after Murray before he aired the piece.

IS THE JUICE WORTH THE SQUEEZE?: In employing this “Filak-ism,” I’m likely to earn the ire of many old-school news journalists. In the idealized world of news, the goal is to tell the truth, consequences be damned. You HAVE to tell the truth and you MUST push back against powerful forces. In the movies, it always looks like this:

There’s that sense of “Damn the torpedoes! Full speed ahead!” that brings vigor to journalism and that is trumpeted as “this is why we do what we do.” I’ll never argue that in a perfect world, the bad guys get punished, the truth gets told and Gary Cooper always rides off into the sunset with Grace Kelly.

We don’t live in a perfect world and if you need any proof of that, go look at the approval ratings of journalists these days.

My friend Allison and I used to ask when we would deal with difficult situations or plan those Quixotic efforts, “Is this the hill you’re willing to die on?” In other words, if everything goes to hell in a speedboat and you don’t end up winning the day and Gary Cooper gets run over by a horse while Grace Kelly runs off with the blacksmith instead, are you OK with that? Was this worth it?

In the case of Crowe’s story, he felt it was worth it and he ran the risk of losing the fight, the ability to do good news and maybe even his job. In the case of the “Spotlight” story, the Boston Globe eventually got the pieces in front of the public and unveiled some of the darkest elements of the powerful force that was the Catholic church.

In the case of John Oliver, well, we got another awesome moment or 12 from Mr. Nutterbutter, so I guess that was good as well.

The point is, if you’re going to take on someone who will likely torture you with legal stuff and drain your piggy bank of every last cent, make sure you feel it’s a worthwhile endeavor. If you don’t, then let it go and be OK with the fact someone is getting away with lousy behavior because of your choices.

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