First Amendment Report Card – Winter 2017/18


“We end the year much in the same way we started it – hoping and thinking that assaults on the First Amendment and our sensibilities could not get any worse but they have.”

– Mickey Osterreicher, General Counsel for the National Press Photographers Association

The composite grade point average for the five freedoms of the First Amendment slightly increased to from 2.25 to 2.29 — still a modest C+ — in the fourth installment of the Newseum Institute’s First Amendment Report Card, released on January 24, 2018.

In this evaluation by a team of First Amendment experts, the grade point averages for speech and assembly increased, while the grade point average for press freedom declined and religion and petition remained relatively stable.

This report card reflects, in many ways, the cumulative turbulence of the first year of the presidency of Donald J. Trump.

 

  • The panelists commented on the administration’s efforts to discredit the news media, but also said they were impressed by the resilience of the press.
  • They noted administration attempts to challenge publication of critical reporting, but also identified the increase in the number of women speaking out against sexual harassment as an important milestone for free speech.
  • The effects of the Charlottesville protests on last quarter’s grades for assembly appeared to be mitigated by this quarter’s robust organization of marches.
  • Despite recognizing disparities around what interests had the most impact on influencing federal tax reform, the panelists rated petition the strongest freedom.
  • Many panelists were reluctant to weigh in with new thinking around the freedom of religion, preferring to wait until the U.S. Supreme Court decides the Masterpiece Cakeshop case in the months ahead.

 

The Newseum Institute’s First Amendment Center launched the report card in April 2017 to evaluate the state of each of the five freedoms of the First Amendment in the age of Donald Trump. The Winter 2018 report card is based on the opinions of the same panel of 15 First Amendment experts — academics, lawyers, journalists and activists from across the political spectrum —  who contributed their insights to the Spring 2017,  Summer 2017 and Fall 2017 report cards.

We asked our panelists to start with their grades from the previous quarter’s 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 includes 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 determining 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 Fall 2017 Winter 2017/18
Religion C+ (2.20) C+ (2.40) C+ (2.36) C+ (2.36)
Speech C+ (2.40) C+ (2.27) C (2.00) C+ (2.20)
Press C (2.00) C (1.93) C (2.07) C (1.93)
Assembly B- (2.53) B- (2.67) C (1.87) C+ (2.28)
Petition B- (2.80) B- (2.80) B (2.93) B- (2.79)
First Amendment Composite C+ (2.39) C+ (2.41) C+ (2.25) C+ (2.29)

Religion

C+

Freedom of religion retained its C+ grade, and its 2.36 grade point average, from last quarter.  The most commonly awarded grade was a “B.”

In the previous three quarters, the Trump administration’s travel ban was a major factor in our panelists’ assessment of freedom of religion. While this remained a concern for many panelists this quarter, it appeared to have less of an impact on the grades they awarded.

“The SCOTUS ruling allowing the Trump travel ban to take full effect was disappointing, and [Justice Anthony] Kennedy’s position in particular suggests that the court will reverse the lower courts,” wrote Asma Uddin, a fellow at UCLA’s Initiative on Security and Religious Freedom. “However, it remains to be seen how the Court will rule on the merits of the ban.”

The  Masterpiece Cakeshop case, which was argued before the Supreme Court in December of 2017, was also at the forefront of our panelists minds’ as they considered the future of religious freedom in the United States. Wrote panelist Brett Schraffs, professor of law and director of the International Center for Law and Religious Studies at BYU: “The Masterpiece Cakeshop case has been discouraging because the framing of the issue by the person describing the case almost completely telegraphs the viewpoint that will accompany the analysis. Calm, fair-minded characterization of the facts seems a task almost beyond us.”

“I’m going to upgrade this category [to a B grade] given that the 2017 skirmish in the ‘War on Christmas’ seemed muted.”

– ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES AT THE CATO INSTITUTE AND EDITOR-IN-CHIEF OF THE CATO SUPREME COURT REVIEW


Speech

C

“I think perhaps the recent climate encouraging women to come forward with stories of sexual assault and harassment has led to a modest improvement in my assessment of the climate for free speech.”

– LUCY DAGLISH, DEAN, PHILIP MERRILL COLLEGE OF JOURNALISM, UNIVERISTY OF MARYLAND AND FORMER EXECUTIVE DIRECTOR OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS

Our panelists regained some confidence in freedom of speech this quarter, causing its grade point average to increase (albeit very slightly—from a 2.0 to a 2.2).  While most of the grades for speech were in the middle range, there remained some spread in the evaluations, with one panelist giving the freedom an A and another rating it an F.

Factors our panelists took into consideration included NFL players taking a knee, Russian meddling in U.S. elections, and the intent expressed by the Trump administration to lower the standards for libel lawsuits.

But the past quarter did see one significant positive change in the climate around speech: the #MeToo movement and the strength with which women have been speaking out against sexual harassment and abuse.

Stephen Solomon, professor of First Amendment law at NYU, wrote: “The taking-a-knee protests in the NFL brought severe criticism from President Trump and others, and speech controversies continued on many university campuses. But these developments were overshadowed by the outpouring of women who revealed that they had been sexually harassed and abused. They created a new and vigorous national conversation on an issue of tremendous importance.”

Nathaniel Frederick, professor of mass communication at Winthrop University, had a more pessimistic take on freedom of speech, commenting, “While President Trump enjoys the freedom of speech when it pertains to his speech, he continues to suggest that libel and slander laws are too lenient when others criticize him.”

However, David Forte, professor of law at Cleveland State University, saw support for freedom of speech from across the ideological spectrum: “Even though intolerance of contrary viewpoints is still pressed on many college campuses, free speech advocates have made many gains. Over a dozen colleges now adhere to the University of Chicago’s Free Speech Principles. Conservative and libertarians such as Eugene Voloch are joined by liberals such Erwin Chemerinsky to defend free speech.”

“Our constitutional safeguards were adopted to protect against government overreach, particularly in times of adversity. This is one of those times, with an Executive Branch that is openly hostile to the exercise of freedom of expression (except when practiced by its supporters – the kind of speech all authoritarians support). [But] that bad trend has not succeeded in silencing dissent. That is how the system is supposed to work.”

– ROBERT CORN-REVERE, LAWYER AND EXPERT IN FIRST AMENDMENT AND MEDIA LAW


Press

C

“The president continues to denigrate the press coverage he does not like, threatens lawsuits against a book author and his publisher, and fails to apologize for attacking press freedom.”

– RICK BLUM, Policy Director of Reporters Committee for Freedom of the Press

Press grades fell slightly, dropping to a 1.93 grade point average and making this the lowest grade among the five freedoms protected by the First Amendment.

“President Trump’s attacks on the press took on a new level of toxicity,” commented Stephen Solomon, who teaches First Amendment law at NYU. Solomon noted that Trump has called for the firing of specific journalists and tried to use FCC licenses as a stick, and that one of Trump’s lawyers sued Buzzfeed and Fusion GPS for defamation. “The move from rhetoric to specific threats and lawsuits is a dangerous escalation,” Solomon argued.

The cease and desist letter the President’s lawyers sent to author Michael Wolff and his publisher regarding White House expose Fire and Fury was also a factor for many panelists.  Said Mickey Osterreicher, General Counsel for the National Press Photographers Association: “As noted in their attorney’s reply, not only were the assertions wrong but laughable in how they sorely lacked any understanding of constitutional jurisprudence. While this appears to be another failed attempt to censor a journalistic work critical of the President it reinforces a constant drumbeat against speech and press freedoms that could at some point gain more traction than it has so far.”

Ken Paulson, president of the First Amendment Center of the Newseum Institute and former editor of USA Today,  raised the “fake news phenomenon” as a key threat to the freedom, going as far to say that, “The widespread use of the term “’fake news’ by public officials seeking to avoid accountability is alarming, as is the public’s dismissal of even well-documented news stories because they conflict with an ideological belief. Our country is in trouble.”

But other panelists’ had more positive takes on the challenges the press faces and the way the industry has responded.

“Official threats against the press have not abated, and, if such a thing were possible, have only grown more intense. But that fact has not suppressed vigorous reporting; it has helped make it more effective,” according to First Amendment lawyer Robert Corn-Revere.

Ilya Shapiro of the Cato Institute and Brett Scharffs, professor of law at BYU, both noted that the press is, in part, responsible for the lack of trust that it has among the American people.

“The Trump Administration has presented an unprecedented challenge to the press, and the press has done a remarkable job of discrediting itself,” Scharffs wrote. “These days it is difficult for anyone to read anything from any press source without taking into account the perceived probably biases and priors of the outlet. The problem is not that the press is not free. The press is free, but it has become much more difficult to trust.”

Shapiro was succinct in his rationale for awarding press freedom a high grade : “The press is incredibly free in this country — at times irresponsible and slanted and click-baity, but totally free.”


 

Assembly

C

The freedom of assembly partially recovered this quarter, after suffering a precipitous drop in the fall following the Charlottesville protests. It moved up from a 1.87 on the previous report card to a 2.21—an improvement, but still less than its high at 2.67 earlier in 2017.

The grades were spread out in the middle of the spectrum this quarter, with all the panelists giving assembly B, C, or D grades, but not all comments were without concern.

Providing perspective as a leader at a major public university, Lucy Daglish, dean of the Philip Merrill College of Journalism, wrote: “I have seen movement nationwide to pressure public university officials to limit speech and assembly on campus as a way to satisfy those concerned about hate speech, diversity and inclusion.”

Following his statement in the last report card that “the courts continue to treat assembly as a second-class right,” Bradley Smith, a former chairman of the Federal Election Commission, noted this quarter that “Harvard is expelling students who join off-campus organizations of which the university doesn’t approve. That is private action, of course,” Smith notes, “but it pretty much sums up society’s current disregard for this important right.”

Mark Trahant, professor of journalism at the University of North Dakota, observed that we are living in a climate of “continued disrespect by government officials for dissent and the right of the people to assemble,” adding, “I think it will be interesting to see what kind of assembly is protected during the Superbowl, and how that is covered by the press.

“The problems are not so much legal constraints on the freedom of assembly, as a decline in civic institutions in general and civility in particular. It makes public meetings on issues of significance, such as candidate town hall meetings, turn into spectacles of disruption and agitation. It is very discouraging for anyone who believes in civil discourse.”

– BRETT SCHARFFS, Francis R. Kirkham Professor of Law and Director of the International Center for Law and Religion Studies at BYU


Petition

B

“Freedom of petition depends upon Congerssional response to public demands. It is still low.”

– DAVID F. FORTE , FORMER COUNSELOR FOR LEGAL AFFAIRS, UNITED STATES MISSION TO THE UNITED NATIONS

Although it still received the highest grade point average among the five First Amendment freedoms with a 2.79, petition dropped modestly from the nearly 3.0 it received in the previous quarter’s report card.

This quarter, petition was a core freedom that the panelists associated with the passage of a tax reform bill by the Republican majority in Congress.

Stephen Solomon, professor of First Amendment law at NYU, wrote: “The right to “petition the Government for a redress of grievances can suffer even if no law is enacted that expressly limits it. We saw that as Republicans passed sweeping tax reforms affecting every citizen and business without holding hearings. Petition was robust for lobbyists and other insiders who had access to GOP lawmakers, but weak for citizens and groups who were less connected.”

Mark Trahant, professor of journalism at the University of North Dakota, had a similar observation, commenting that “freedom to petition does pretty well when you look at how successful lobbyists (especially those with resources) were during the tax debate in Congress. Not only were concerns heard, they often ended up in the legislation. However, that same right was less powerful for ordinary Americans.”


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 report card, we asked our panelists to start with their grades from the previous 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. Please note that this includes 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, Policy Director of Reporters Committee for Freedom of the Press and coordinator for News Media for Open Government
  • 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, Fellow, Initiative on Security and Religious Freedom, UCLA Burkle Center for International Relations

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