First Amendment Report Card – Summer 2017


Last quarter, the Newseum Institute’s First Amendment Center launched a “report card” to evaluate the state of each of the five freedoms of the First Amendment in the age of Donald Trump. The purpose of this project is to go beyond partisan ad hoc observations, and provide a credible and systematic evaluation of freedom based on grades provided by a diverse set of some of the nation’s leading constitutional scholars and observers.

Our first report card, released in April 2017, was based on the opinions of a panel of 15 First Amendment experts — academics, lawyers, journalists and activists — from across the political spectrum. The same panel reconvened to provide their grades and commentary for this second-quarter report card.

The first report card was intended to set a baseline for First Amendment grades. Accordingly, we instructed our panelists to base those first-quarter grades on more than just events that occurred during the first three months of the Trump administration; we also asked them to take into account pre-existing conditions, so as to provide a comprehensive snapshot of the First Amendment at that moment in time.

For this second report card, we asked our panelists to start with their grades from the first-quarter report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since the last report card. Please note that this included issues, such as speech on college campuses or state legislation, that the Trump administration does not directly control.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In selecting the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.

Freedom Spring 2017 Summer 2017
Religion C+ (2.20) C+ (2.40)
Speech C+ (2.40) C+ (2.27)
Press C (2.00) C (1.93)
Assembly B- (2.53) B- (2.67)
Petition B- (2.80) B- (2.80)
First Amendment Composite C+ (2.39) C+ (2.41)

First Amendment Composite

C+

The composite grade point average for the five freedoms of the First Amendment stayed almost the same as last quarter’s, at 2.41 — a C+. At first glance, it may seem that nothing has changed. But a closer look reveals that a great deal has happened in the past three months.

When asked what criteria he considered when grading freedom of the press, First Amendment lawyer Robert Corn-Revere’s answer was illustrative:

In the past quarter alone, the FBI has called for the prosecution of the publisher of WikiLeaks; the White House produced television ads attacking what it calls “fake news”; a reporter was arrested in West Virginia for asking the Secretary of Health and Human Services about the administration’s health care proposals; the FBI director was fired for talking to the press (and that’s just the cover story); the Russian press was allowed into a White House meeting closed to U.S. reporters, at which the president disclosed intelligence information and bragged about firing the FBI director; the White House threatened to cancel press briefings altogether, while drastically curtailing on-camera press statements; the president told the FBI director that he should imprison journalists who publish leaks, while simultaneously welcoming foreign dictators who close down news outlets and jail journalists (and whose security details attacked and beat demonstrators while on U.S. soil); a candidate for the House of Representatives body-slammed a reporter for asking a question about health care, was charged with assault, and won the election anyway. I’m sorry, what was the question?

While many of the overall threats to and opportunities for the First Amendment remained the same this quarter, the numerous events of the past three months had an impact on the way our panelists graded our freedoms. The repeated blocking of the Trump administration’s travel ban in federal courts, the recent Supreme Court decisions impacting freedom of speech and freedom of religion, and the sharp uptick in assaults against journalists were all frequently cited in our panelists’ comments, and bore most of the responsibility for the shifts in grade point averages.


Religion

C+

“While the President continues to support and push for what the President calls a “travel ban,” the Courts have consistently and forcefully blocked the move as discriminatory to religious freedom. This grade could drop precipitously if the administration finds another way to accomplish the same goal.”

– RICHARD BLUM, DIRECTOR OF NEWS MEDIA FOR OPEN GOVERNMENT

 

Freedom of religion retained its C+ average from last quarter, with a slightly higher grade point average (2.40, versus 2.20 last quarter). Another sign of improvement: While “C” was the most common grade awarded last quarter, this quarter the most common grade was a “B” (almost half of our panel voted this way). On the other hand, only one of our panelists awarded freedom of religion an “A.”

Once again, several panelists pointed out that anti-Semitic and anti-Islamist attitudes seem to be on the rise, and expressed concern about the Trump administration’s continual pushing for its travel ban, which Robert Corn-Revere, lawyer and expert in First Amendment and media law, referred to as “a thinly disguised appeal to religious bigotry.”

However, our panelists also recognized several positive developments for the freedom of religion this quarter. Several of them were quick to point out that the aforementioned travel ban has been repeatedly blocked by federal courts for being discriminatory towards Muslims. The Supreme Court’s recent decision in the case of Trinity Lutheran v. Comer also had an impact on religious freedom grades. The Supreme Court found that a Missouri state law barring religious organizations from receiving public funding was unconstitutional. Some panelists heralded this as a win for religious freedom. “The grade for freedom of religion has improved largely because of positive Supreme Court rulings,” said Asma Uddin, director of strategy for the Center for Islam and Religious Freedom,” noting that the decision means that, “the government can’t exclude religious organizations from public safety programs simply because they are religious.” A couple of our panelists seemed a bit less enthused by the result. As Mickey Osterreicher, general counsel for the National Press Photographers Association, observed, “Depending on your point of view the opinion moves us one step closer to direct government support of religious institutions or helps clarify that a state benefit cannot be specifically denied solely on religious grounds.”


Speech

C+

“College campuses, once relied upon as a marketplace of ideas, have become intolerant. Every slight or offense has been labeled “hate speech.”

– Lucy Dalglish, Dean of the Philip Merrill College of Journalism, University of Maryland

Freedom of speech also retained its C+ grade from last quarter, but its grade point average dropped from a 2.4 to a 2.27. While last quarter freedom of speech had just as many B grades as C grades, this quarter more than half of our panelists awarded Cs.

Several panelists brought up the recent controversies surrounding free speech on college campuses. Most of their concern was focused on student intolerance of controversial speech, but Mark Trahant, professor of journalism at the University of North Dakota, also pointed out that, “Lawmakers and state administrators are not standing up for freedom (such as the Wisconsin proposal to expel students for campus disruption).”

There were some positive developments for freedom of speech this quarter. Several panelists were pleased with the outcomes of two recent Supreme Court cases: Matal v. Tam, where the Court found that a law against offensive trademarks was unconstitutional, and Packingham v. North Carolina, where the Court recognized access to social media as a First Amendment right.

“In that patent and trademark case [Matal v. Tam] Justice Kennedy’s concurrence (joined by Justices Ginsburg, Sotomayor and Kagan) properly noted in the that “a law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all” and therefore “the First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.” In the other end-term case of Packingham v. North Carolina, striking down that state’s statute making it a felony for registered sex offenders to access a “commercial social-networking site,” Justice Kennedy was once again instrumental in taking judicial notice of the broader relationship of the Internet to free speech by stating, “the nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it . . . and when awareness comes, they still may be unable to know or foresee where its changes lead.”

– Mickey Osterreicher, general counsel for the National Press Photographers Association


Press

C

“Most concerning are the continuing attempts to undermine trust in the press and appreciation for the critical role it plays in a democratic society—a role recognized by Madison and others among the nation’s founders. A large segment of the public appears to be increasingly dismissive of even the best journalistic work. But on a positive note, some leading news organizations have committed major resources to investigative reporting.”

– Stephen D. Solomon, Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law

Last quarter, the right to a free press had the ignoble honor of receiving the lowest grade point average of all five First Amendment freedoms, at 2.00. This quarter, it retained that position — and its grade point average fell even further, to a 1.93.

What happened since our last report card? Asma Uddin deftly summarized the series of events:

(1) Trump barred the press from his meeting with the Russian ambassador; (2) Trump boycotted the White House Correspondent’s dinner; at his rally the same day, he spent some time attacking the press again; (3) a journalist was arrested for asking Trump’s health secretary, Tom Price, a question that Price refused to answer; (4) a reporter was manhandled and forcefully taken out of a federal building after he tried to question an FCC commissioner; (5) Montana Republican, Greg Gianforte, won a seat in the House of Representatives despite being charged with assaulting a reporter who had questioned Gianforte about his position on the House health care bill; (6) soon after Kentucky Governor Matt Bevin heavily criticized the press, someone fired a gun at the offices of the Lexington Herald-Leader; and (7) in late April, in an interview with ABC, Reince Priebus said that the Trump administration is considering pushing to change the First Amendment to make it easier for the White House to sue media organizations.

Furthermore, as Nathaniel Frederick, professor of mass communication at Winthrop University, observed, “White House Press Secretary Sean Spicer banned TV cameras from media briefings. This essentially blocks media coverage from TV reporters. President Trump also continues to undermine the press with baseless claims of fake news.”

Almost all of our panelists were alarmed by the lack of consequences for the physical attacks on journalists, as well as the White House’s attempts to undermine public trust in the media. But many also noted a silver lining: the recent rise in the quality of investigative journalism, or as Ken Paulson, president of the First Amendment Center of the Newseum Institute describes it, “the extraordinary watchdog work from news organizations, particularly The New York Times and The Washington Post.” Not every panelist took such a favorable view of the press, however. Brett Scharffs, professor of law at Brigham Young University, took issue with media bias, noting that, “Too much of the press has joined not just the ‘opposition,’ but the ‘resistance,’ which if you take language seriously (as press professionals should) is worrisome for democratic values.”

“This quarter I’d split this grade into two: Protections for journalists would receive a strong “F.” The arrest of a West Virginia reporter for asking questions, Greg Gianforte’s body slamming reporter Ben Jacobs, veteran reporter John Donnelly being shoved against a wall are each unacceptable. Each act happened without severe consequences…At the same time, the news “output” receives an “A.” The news stories the public is getting despite the administration’s hostility to the press has served the country well. People in government have shown a strong willingness to talk with journalists to ensure news consumers have an accurate understanding of the biggest stories of the day, even when more powerful officials want to keep the public in the dark, blur the truth or divert attention from unflattering news. “Leaks” and anonymous sources have provided news and information of consequence that allows the public to form their own opinions.”

– Richard Blum, director of News Media for Open Government

 


 

Assembly

B-

“Assembly is alive and well, with large political marches – from both left and right – taking place in all 50 states in the past 10 weeks. They were overwhelmingly peaceful and well-covered by the news media.”

– Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today

 

The grade point average for freedom of assembly improved this quarter, rising from a 2.53 to a 2.67. While last quarter, this freedom received three “D” grades, this quarter it received no grade lower than a “C.”

Many panelists did not see much of a change in the freedom to assemble, observing that that the marches and protests that dominated last quarter have persisted this quarter, and continue to be tolerated. But one panelist suggested that there may be some negative developments too subtle to be readily apparent. Mickey Osterreicher cited a special report to the United Nations on the freedom of assembly in the United States that found that there has been a massive erosion of the right to organize and protest in marginalized communities in the past year, as a result of “increasingly anti-democratic enforcement tactics,” such as ICE agents conducting surveillance at gatherings geared towards migrant laborers.

“I’m downgrading this area because of statements by the Portland mayor that he wanted to prevent certain gatherings (before his lawyers stopped him from trying to pull an assembly permit), and similar sentiment popping up in other places.”

– Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review<


Petition

B-

“Perhaps this is the strongest of the five freedoms. The professional petitioners (also known as lobbyists) are in demand. A telling sign was when a U.S. Senator said they only way they could get information about the health care bill was a though a lobbyist.”

– Mark Trahant, independent journalist and the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota

Once again, petition achieved the highest grade point average of all five First Amendment freedoms: 2.80. The most common grade awarded to petition was a “B” (by eight members of our grading panel).

Most panelists did not observe much change, positive or negative, with regard to the freedom to petition. As Nathaniel Frederick noted, “Citizens continue to speak out against government actions through various forms of petition. Phone calls, email, letters, and editorials in local newspapers are all effective forms of petition.” Mickey Osterreicher observed that the freedom to petition was used to block the implementation of the travel ban (strategic litigation is one aspect of the power of petition).

But a couple of panelists expressed some concern over the ability of ordinary citizens to successfully petition for change. Mark Trahant noted that the petitioners with the most power are paid lobbyists; Stephen Solomon, professor of law at New York University, found it troubling that the public was not able to comment on the bill drafted by Senate Republicans to repeal and replace Obamacare.

“Citizens continue to call, tweet, and email in an attempt to influence public policy on many issues. But their ability to provide input on one of the most important pieces of legislation in Washington—the effort to repeal and replace Obamacare—suffered greatly from Senate Republicans drafting their bill in secret, without committee sessions and public comment. At the end of June, the Senate was expected to vote on a bill affecting about one-sixth of the U.S. economy without an opportunity for citizens to fully discuss it and to petition Congress on its specific provisions.”

-Stephen D. Solomon, author of “Revolutionary Dissent,” Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law

Methodology

The grading was performed by 15 expert panelists from across the political spectrum. These panelists have committed to providing quarterly updates of their grades for at least one year.

Each panelist was sent a survey asking them to assign a grade and add their commentary on each of the five freedoms: religion, speech, press, assembly and petition.

We recommended that panelists start with national/federal-level considerations, but encouraged them to take note of state actions as indicators or precedents. For this second report card, we asked our panelists to start with their grades from the first quarter report card and alter or confirm them based on changes in legislation, executive orders, judicial decisions, and indicators of public opinion that have occurred since the last report card. Please note that this included issues, such as speech on college campuses, or state legislation, that the Trump administration does not directly control.

Panelists were asked to use their own criteria when assigning a letter grade, but were advised to consider the following four elements in making their evaluations:

  1. Legislation (passed or proposed)
  2. Executive orders
  3. Judicial decisions
  4. Public opinion

All panelists were encouraged to make comments to explain their grades.

Panelists were instructed to assign each freedom a letter grade, without using pluses or minuses. In selecting the overall grade of a First Amendment freedom for our report card, we used the average of the grades assigned by our panelists.


Panelists

Panelists’ affiliations are noted for identification purposes only.

  • Richard Blum, Director of News Media for Open Government (formerly the Sunshine in Government Initiative)
  • Robert Corn-Revere, lawyer and expert in First Amendment and media law
  • Lucy Dalglish, Dean, Philip Merrill College of Journalism, University of Maryland, and former Executive Director of the Reporters Committee for Freedom of the Press
  • Richard Foltin, Director of National and Legislative Affairs, American Jewish Committee (AJC)
  • Nathaniel Frederick II, Ph.D. Associate Professor of Mass Communication, Director of African American Studies, Winthrop University
  • David F. Forte, Professor of Law, Cleveland State University, former Counselor for Legal Affairs, United States Mission to the United Nations
  • Lata Nott, Executive Director of the First Amendment Center of the Newseum Institute
  • Mickey Osterreicher, General Counsel for the National Press Photographers Association
  • Ken Paulson, President of the First Amendment Center of the Newseum Institute and former Editor of USA Today
  • Brett Scharffs, Francis R. Kirkham Professor of Law and Director of the International Center for Law and Religion Studies at BYU
  • Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review
  • Bradley Smith, Professor of Law, Capital University, founder of the Center for Competitive Politics, and former Chairman of the Federal Election Commission
  • Stephen D. Solomon, author of “Revolutionary Dissent,” Marjorie Deane Professor at the Arthur L. Carter Journalism Institute, New York University, teaching First Amendment law
  • Mark Trahant, independent journalist and the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota
  • Asma Uddin, Director of Strategy, Center for Islam and Religious Freedom

The First Amendment Report Card was assembled by Lata Nott, executive director of the First Amendment Center of the Newseum Institute, and Gene Policinski, chief operating officer of the Newseum Institute.