New institute aspires to protect First Amendment in digital era

New institute aspires to protect First Amendment in digital era

Free speech challenges have moved from printing presses to cell phones and computers

Apple-FBI fight over cell phone access among new areas of potential court battles

Columbia University, Knight Foundation to spend $60 million on venture

BY JAMES ROSEN MAY 20, 2016 4:43 PM

Almost a half-century after the Supreme Court gave two newspapers the right to publish the Pentagon Papers in a victory for press freedom, the struggle over First Amendment rights is shifting now to cell phones and global web sites.

A new research and litigation center plans to step into that rapidly changing environment with journalism, law and technology scholars and experts and a mission to define and protect free speech in the 21st Century.

The $60-million venture announced this week by the Knight Foundation in Miami and Columbia University in New York is ambitious. The Knight First Amendment Institute at Columbia will tackle issues from the balance between privacy and national security to the very meaning of news when professional training or expensive equipment aren’t needed to deliver the messages that shape history.

“Right now, with the Internet and the Web, we have one of the largest transformations in communications technology ever,” Columbia University President Lee Bollinger told McClatchy. “Every time you have a new communications technology – whether it’s the printing press, radio or TV – major questions come up under freedom of speech, because the context changes.

“We hope to help define the First Amendment over the course of the next decades.”

The Columbia-Knight venture will help news organizations, whose revenues have plummeted in recent years as readers migrate to the Internet, with legal battles while doing research. Their mission also envelops digital-only news organizations, such as the Huffington Post and The Daily Beast, that have struggled to attract significant revenue despite drawing substantial audiences.

“This is a fantastic show of commitment to what matters most, and that’s our freedom to participate as citizens in our democracy,” said Pam Fine, a Kansas University journalism professor who is currently president of the American Society of Newspaper Editors.

WHILE THE FIRST AMENDMENT DATES BACK MORE THAN TWO CENTURIES TO THE CONSTITUTION’S BILL OF RIGHTS, THE MOST SIGNIFICANT SUPREME COURT RULINGS DEFINING ITS APPLICATION HAVE COME IN THE LAST 50 YEARS.

As examples of new challenges to free speech, Bollinger, Fine and other First Amendment experts cited the recent court fight between Apple and the FBI over government access to an alleged terrorist’s cellphone, Google’s current struggle in Europe against “Right to Forget” laws mandating digital removal of past damaging personal information and several U.S. state laws restricting where government or privately owned surveillance drones can fly.

“The news media has a vested interest in being able to shoot photographs or videos of mass gatherings, as we saw in (the 2014 Missouri unrest in) Ferguson and see even in sports,” Fine said. “There is the question now of how do we do our job effectively without abrogating the privacy of someone who’s swimming naked in their backyard pool?”

Beyond government control of information, the digital age has created conundrums over access to private and commercial data. One such case is hackers’ distribution of Sony Pictures employees’ salaries, emails, personal information and even unreleased films in November 2014. Another example occurred a month earlier, when a hacker breached celebrities’ iCloud accounts and released nude photos.

While the Supreme Court and lower courts have defined the First Amendment as it pertains to newspapers in key decisions over the last century, its meaning and reach has not been established for the Internet, said Alberto Ibarguen, a former Miami Herald publisher who’s now president and CEO of the Knight Foundation.

“... We hope this institute will make significant contributions in studying comparative law,” he said, “bringing in some of the technology companies and hopefully making them see that this is their fight too.”

Its $30-million contribution is the Knight Foundation’s largest journalism grant. It matches what it gave Detroit to help prevent the sale of a city-owned art collection during its municipal bankruptcy proceedings.

Ibarguen said that after talking with the leaders of a number of universities, he chose Columbia for several key reasons. Bollinger is a leading First Amendment scholar who teaches about press freedom at his university; the Columbia Graduate School of Journalism is among the world’s best schools in the field with alumni holding influential posts; and Columbia, through its Brown Institute for Media Innovation, has an existing relationship with Stanford’s School of Engineering focused on the intersection between news and technology.

Perhaps as important, Ibarguen said, Bollinger provided assurances that heads of the Knight-Columbia venture will report directly to him as president and to his successors, a distinction shared with the Pulitzer Prizes, the journalism awards program that Columbia manages.

The institute will address how the massive scope and sheer speed of the Internet are raising fresh First Amendment issues, as illustrated by Swedish Internet activist Julian Assange’s digital publication of 1.2 million Wikileaks documents and former National Security Agency contractor Eric Snowden’s unauthorized release of classified materials.

WE DON’T KNOW WHAT THE COURTS ARE GOING TO SAY, WHAT THE GOVERNMENT IS GOING TO DO, WHAT INDIVIDUALS WILL DO IN SUING EACH OTHER. WE DON’T KNOW HOW FUTURE GENERATIONS ARE GOING TO INTERPRET FREEDOM OF EXPRESSION.
Knight Foundation CEO Alberto Ibarguen

Those releases dwarf, at least in volume, the 1971 publication of the Pentagon Papers, a secret government report that provided a darker assessment of U.S. prospects in the Vietnam War than official pronouncements.

“The Pentagon Papers were Xeroxed,” Bollinger said. “Today hundreds of thousands or even millions of documents can be released with the click of a button. And they may not go to reputable news organizations like the Washington Post and the New York Times. It may be Wikileaks, which has a philosophy of making everything public, no matter what the costs to society. A serious question arises about the balance of interests between the government protecting secrecy it needs to protect national security versus the public’s right to know what the government is doing.”

Eric Newton is innovation chief of Cronkite News, a PBS news outlet based at Arizona State University. He said that while the Apple-FBI conflict captured headlines, law-enforcement agencies have confiscated cell phones and computers in numerous other cases.

“The police cannot seize a printing press or go into a broadcast studio and shut it down, but they have seized your cell phone, which is effectively a printing press, and turned it off,” Newton said. “A citizen using a cell phone is in a gray area as far as current First Amendment law goes.”

George Freeman, a former New York Times attorney who’s now executive director of the Media Law Resource Center, cited the Apple-FBI fight and the question of whether anonymous online commenters should get First Amendment protection as two of the kinds of issues the Columbia-Knight initiative will tackle.

“The challenge they face will be finding the right litigation to really move the First Amendment agenda forward,” he said. “Obviously, where the area is newer, the law is more volatile.”

James Rosen: 202-383-0014; Twitter: @jamesmartinrose


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