Tag Archives: law

Defending the First Amendment and the Fourth Estate

August 12, 2019David McCrawfree press, journalism, lawJenna Spinelle

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We are back with new episodes this week, and we’re starting with an interview that we recorded in New York City earlier this summer. David McCraw is the Deputy General Counsel of the New York Times and author of Truth in Our Times: Inside the Fight for Press Freedom in the Age of Alternative Facts.

The First Amendment and a strong Fourth Estate are essential to a healthy democracy. McCraw spends his days making sure that journalists can do their work in the United States and around the world. This includes responding to libel suits and legal threats, reviewing stories that are likely to be the subject of a lawsuit, helping reporters who run into trouble abroad, filing Freedom of Information Act requests, and much more.

Additional Information

David’s book: Truth in Our Times

Interview Highlights

[3:30] There was a lot of speculation about the future of the First Amendment after the 2016 election. How are things holding up today?

We have a free press if the people want it. It really, in the end, depends on having an engaged citizenry. Donald Trump has talked about changing the libel laws. That doesn’t really worry me a lot. I think it’s a long process, and it’s probably not going to happen. What really is important is whether people, average voters, are going to make use the free press we have.

[5:00] How often does someone threaten a libel suit vs. actually filing one?

It’s a really important point, because when we talk about libel, it was originally intended to fix people’s reputations. Somebody says something about you that’s untrue, hurts your reputation, you go to court, you get that fixed. And, that really hasn’t changed much. We get a lot of threats. Not a lot of threats, but we get threats. We get very few lawsuits. But, those threats are really designed to use litigation, the threat of litigation, to get us to say something other than what we think should be said to the American people.

[6:28] How does the New York Times v. Sullivan case impact press freedom?

At the end of the day, Times versus Sullivan is really, a fairly simple concept. And that is, a publisher has a right to make a mistake. That if a publisher gets something wrong, and actually, even if that statement hurts somebody’s reputation, that person, if that person’s a public figure or public official, can’t win a libel suit unless the person can prove that the statement was made with actual malice.

[10:40] Where does social media fit into this picture?

One of the things that I find very curious about the President is that, in the recent years, when he’s been involved in libel suits, it’s because he’s been sued. And, he’s been sued for things he’s said on Twitter. When he starts criticizing the libel laws, he’s completely lining up on the wrong side of the ball. He should be siding with me, because he needs those defenses.

[13:45] Tell us about the letter you wrote to Donald Trump’s lawyers in October 2016.

We published a story in which, two women claimed that they had been inappropriately touched by Donald Trump many years earlier. The story happened right after the controversy over the Access Hollywood tape. Donald Trump, then a presidential candidate, had appeared at the debate on a Sunday night and defended his reputation and his conduct towards women. This story followed that. They had posted their demand to us online.

I knew that we were going to post our response online. And so, while I do think I followed exactly what the law says in these situations, and summarized it accurately, it was pointed. And, it was pointed in part because I don’t like to be threatened. It was pointed in part because I think people expect us to stand up.

[17:20] What work do you do with Freedom of Information Act requests?

The Freedom of Information Act was signed into law on July 4, 1966 by Lyndon Johnson. And, Michael Schudson at Columbia has a great book about the rise of the right to know, which details this and other parts of the history of that concept, the right to know. But, that was the heart of it, that the public has a right to know what the government’s up to. And, that includes getting documents. What we’ve seen since then is the law being gnawed away until it’s taken much much away from what one would expect to get when filing a FOIA request.

[21:15] Civil servants are often painted with a very altruistic brush. It seems like that might not be the case here.

I had this epiphany at the beginning of the Obama administration when I was invited to go to a conference of FOIA officers and speak, therefore, meeting a lot of people I’d written angry letters to. And, it’s a lot easier to write angry letters to anonymous people when you don’t know what they look like. Now, you’re in a room with a bunch of them.

They were conscientious. They didn’t have the resources, and they didn’t have the power to do what needs to be done. What’s interesting is, as I’ve gone around and talked about this with people from other countries is, a country like Mexico actually has an office that overrides agencies, so that it takes it out of the political process, and some independent agency’s deciding. And, other governments, other countries have that same sort of setup.

[27:33] What should people to do protect the First Amendment moving forward?

At the end of the day, what I’m really interested in is, seeing an American public that listens to things they disagree with, read things they disagree with, and make discerning judgment. That’s a long ways away from where we are now. It’s hard because there’s so much information out there. But, to me, that’s the only real check is that, people are going to make wise decisions about policies because they’ve made wise decisions about the information they’ve chosen.

Somebody wrote to me, and the email started out with the ominous words, “Why did you write this book?” And, I assume that’s an email that’s going someplace whereas, a sensitive author with thin skin, I don’t want to know. But, it wasn’t. She was right. She’s, “Why did you write this book? Because you should be writing for young adults.” And, that’s really an important point. We need to start much earlier in helping children understand how to read and how to discern, and how to evaluate sources.

Tthe analogy I use is that, the Internet is to information what the Las Vegas buffet is to eating. You walk in, and there’s just incredible choices. Some of them are really bad for you, but they sure taste good for awhile. And, we just need to have people who say, “I’m not going to hang around the dessert table of cable news, and make my entire diet that.”

What Serial taught Sarah Koenig about criminal justice — recorded live at Penn State

April 29, 2019Sarah Koenigcriminal justice, law, prison, Sarah Koenig, SerialJenna Spinelle

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Sarah Koenig spent a year inside Cleveland’s criminal justice system for season three of the Serial podcast. Along the way, she met some interesting people and had a birds-eye view of what justice (and injustice) look like for lawyers, judges, defendants, police officers, and the countless others who pass through the building’s courtrooms each day.

It’s once thing to study criminal justice empirically, as many academics do, but something else entirely to be embedded within the system as Koenig and her team were in Cleveland.

We invited Koenig to Penn State for an on-stage conversation with Democracy Works host and McCourtney Institute for Democracy Director Michael Berkman. They discuss community policing, the lack of data about what works and what doesn’t, and where college students should focus their energy if they’re looking to reform the criminal justice system.

Additional Information

Serial podcast

Cornell’s Peter Enns about the U.S. as the world’s most punitive democracy

UNC’s Frank Baumgartner on race and policing

A note to our listeners in the New York City area: Jenna Spinelle will be participating in a panel called “Podcasts to the Rescue! An Emerging Medium for Learning About Civics, Government, and the Social Contract” on Thursday, May 30 at the Metropolitan New York Library Council. The event is free and open to the public. We would love to meet you!

Discussion/Reflection Questions

If you’ve listened to Serial season 3, what did you find most surprising?
Which part of the criminal justice system do you think is most in need of reform?
How should that part of the system change?
How much discretion should judges have when it comes to sentencing?
What kind of data is needed to understand how to reform the criminal justice system?
What is the relationship between law and justice?

Interview Highlights

[2:45] What about this season of Serial do you think captured people’s attention?

We tried to do what we know how to do, right? Which is to know how to make it narrative, as narrative as we could, and to introduce difficult concepts kind of slowly and not overload you with information. It’s become a topic that people are talking about and caring about in the last however many years and that’s personally a thrill to me, but I think that helps. The timing of it helped.

[3:54] Does season 3 relate to season 1?

A lot of people after season 1 were like “Well, what does this mean about the whole system? Can you extrapolate?” And it felt like, well that, no you can’t extrapolate off of one case that is pretty extraordinary. So it really did feel like, well let’s just go look and see the ordinary stuff. What is the baseline functionality of our system in a very, kind of day to day, mundane way, honestly. Let’s treat the courthouse as an office.

[6:10] What did you learn about the police in Cleveland?

So it was just a very typical, I mean if you read about for example, what’s happening in Baltimore, what’s happened in some other places. And it seems like the places where there has been any successful, true successful outcome from those consent decrees, I think Seattle has actually had a pretty good result if I’m not mistaken. It’s where they get buy-in from the police union, and it’s hard. In a place like Cleveland it’s very hard. It’s very old school. It’s very like, “Don’t tell me how to do my job, I put my life on the line every day.”

[9:40] What do people in Cleveland think about the idea of community policing?

They see the value of it and they think it’s valuable and they don’t want to be the people who, in a place like Cleveland, all you do is just get in your car and just race from call to call to call to call. And half the time, you’re at a call trying to deal with something and you get a call for a more major thing and so you’re ripped away, so then that person that you’re trying to help is like, there goes my guy. So, it’s bad for everyone, that kind of policing. They, they want it and they want, I think, to be able to have real interaction with people in communities.

[14:03] Judge Gaul comes up in several episodes throughout the series. Tell us about him.

His dad had been in county politics. He was getting near retirement age, so he was like mid-60’s. He’d been on the bench a long time, and in Cleveland, in Ohio, you know, county judges have an extraordinary amount of of discretion and latitude.I mean, it’s sort of like a cliché of the courthouse, but like they really do treat it as their own little kingdom. And so he had his style and his way of berating almost every defendant who came before him. He saw it as tough love. That’s how you get elected in Cuyahoga county. No one pays attention to judicial races, so you see the Democratic name, it’s an Irish name, you’re like, it’s vaguely familiar because there’s like ten thousand people named Gaul in the county and you’re like, “Oh yeah, that guy. I’m sure he’s fine.” And so that’s how these people stay on the bench forever.

[20:40] What did you learn about the way probation works in Cleveland?

Half the docket when I was watching would be a probation violation. Most of them were for things like staying out after curfew or going out of state for a funeral somebody’s funeral smoking weed. They’re having to come back through the thing and if you piss off the judge, especially, someone like Judge Gaul who has a temper, you can end up incarcerated. Part of the hugely frustrating thing we saw in Ohio, but I think this is again true in lots of parts of the country, there’s no data. We don’t keep data on this stuff. Nobody is tracking outcome say for when is probation is effective and when people start to slide off and violate more.

[27:50] What do you make of the momentum around electing progressive prosecutors to reform the system?

The focus that we have lately on progressive prosecutors and the big money that’s going into these prosecutors races across the country is fantastic, but it is one piece of the puzzle. This system is enormous and it has many different machines working at once. They do not often interact with each other well or at all. I get a little nervous when we start saying, “Oh, we’ve, we’ve figured out how to fix it, just elect a bunch of progressive prosecutors.” My fear is, yes, you can elect progressive prosecution, but you can also unelect those same prosecutors. So I would rather see a more systemic change.

[30:15] Where can young people have the biggest impact in criminal justice reform?

I would say like those kinds of agencies that are so unsex and it just feels like why would I want to go be a government bureaucrat and like a thankless job? If you’re asking where you can make a difference, boy, wouldn’t it be fantastic to have, um, the smartest, most compassionate, most energetic brains be working on juvenile crime.

When states sue the federal government

October 15, 2018Josh Shapirofederalism, Josh Shapiro, law, norms, Pennsylvania, state politicsJenna Spinelle

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Pennsylvania Attorney General Josh Shapiro — Josh Shapiro

It seems like every few weeks, we see headlines about states banding together to block actions taken by the federal government. You might even remember former Texas Attorney General Greg Abbott quipping that he goes to the office, sues the federal government, then goes home.

How do those lawsuits take shape? How does a state decide whether to join or not? How does that impact the balance of power between federal and state governments? This week’s guest is uniquely qualified to answer all of those questions.

Since taking office in January 2017, Pennsylvania Attorney General Josh Shapiro has been involved with more than a dozen suits brought against the federal government on matters ranging from family separation at the border to EPA emissions regulations. Though Shapiro is a Democrat, he says his chief motivation in joining these suits is the rule of law and a commitment to do what’s right for people of Pennsylvania.

Whether or not you agree with Shapiro’s politics, he does present an interesting take on the role that states play as a check on the federal government. This power is a unique part of the American experiment and speaks to the power of democracy in the states.

Before the interview, Chris and Michael dive into the origins of federalism, including Federalist 51, the 10th Amendment, and the Emoluments Clause of the Constitution.

Additional Information

Pennsylvania Office of the Attorney General

Federalist 51

Discussion/Reflection Questions

What do you think should be the balance between the states and federal government in terms of power?
Do you think states should be active in legal action against the federal government?
Do you think that state attorneys general are becoming too political?
Do you see state as a shield to protect a state’s residents against federal overreach?

Interview Highlights

[5:12] When you took this office, did you expect yourself to be this active on federal issues?

Shapiro: I said when I was sworn in that if someone was going to try to mess with Pennsylvania that they would have to go through me. I see the constitution as giving the states broad authority. States rights isn’t something progressives have pointed to, but it is something I value. If someone in the federal system is doing something to undermine our rights, I’m going to stand up to take action.

[6:32] How do one of these suits against the federal government get started?

Shapiro: The first question is whether the action comports with the rule of law. I put aside what I agree or disagree with personally and instead focus on the law. Once we deem that an illegal action has been taken, be think about what is the best way to file an action to challenge that activity. We discuss whether or not Pennsylvania should be the lead state. There are sometimes strategic reasons why we file a suit in a particular state. What we are not doing is constructing opposition to the president just for the sake of opposing him. What we are doing is organizing ourselves around the rule of law.

[8:43] What issues or possible suits have you turned down?

Shapiro: We’ve been involved in about fifteen cases since taking office. I’m very careful about what we engage in on behalf of the people of Pennsylvania. Again, it is not my job just to weigh in whenever I personally disagree with the president. It is my job to weigh in when the rule of law is being threatened.

[9:31] What is the timeline for one of these cases?

Shapiro: I spend the majority of my time going around to differnt places listening to people. I think I have a good feel for where the people of the state are. I don’t poll test these issues. Instead, I try to do what is right and what adheres to the rule of law.

[10:36] Under Obama, we saw a lot of states file suits against the federal government much like what is happening now with Trump in office. Do you think this goes to the partisan nature of government?

Shapiro: I would actually push back on that a little. Most of what I do is bipartisan. It’s just that the media usually doesn’t report that. The vast majority of the actions we take are really bipartisan.

[12:34] President Trump has stated that he thinks the attorney general office should be more of a political one. What are your thoughts on that?

Shapiro: We are above politics in this office. I’m a proud Democrat. People know I have progressive leanings. They knew that when they elected me. However, we check our political views at the door everyday when we come into the office. If you look at our track record, we’ve held democrats and republicans accountable. We do our job in a way that the people of the state can be proud that the justice system is fair. We are diverse in both appearance and thought.

[15:23] What does the term “rule of law” mean to you?

Shapiro: It is the very foundation of everything that I do. It helps you be above politics. My job is to understand the law, apply the facts and evidence, then make a decision in the best interest of the people of Pennsylvania.

Shapiro: The tenth amendment makes it really clear that states have a role to play in our democracy. I believe that if the federal government is making an overreach into our state business, then I’m going to be a shield to guard against that. However, states have also at times been the thing infringing upon rights. However, more often than not, they are expanding rights. The fight for marriage is a perfect example of that. Justice Brandies spoke eloquently about states being the laboratories for democracy. That still holds true today. States need to be a shield against overreach and a sword in promoting the rights of their citizens.

The constitutional crisis episode

July 2, 2018Jud Mathewsconstitution, law, normsJenna Spinelle

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This is one we’ve been wanting to do since we started the podcast. The term constitutional crisis is frequently used but often misunderstood. Like democracy, it’s hard to define but you know it when you see it.

If anyone can provide a definition, it’s Jud Mathews, an associate professor of law at Penn State. He has a law degree and a Ph.D. in political science (both from Yale, no less). Jud says we’re not in a constitutional crisis yet, but that constitutional norms — much like democratic norms — are eroding more and more each day.

Jud also cautions against using the term constitutional crisis too loosely because of the “boy who cried wolf” problem that we’ll become so desensitized that we won’t recognize one when it actually occurs. Beyond being a legal scholar, he has made the Constitution his life’s work. He’s passionate about what it represents and understandably upset to see its force as a roadmap for the country called into question.

If there’s one bright spot to take from this conversation, it’s that there are many dedicated public servants throughout the government who are committed to upholding constitutional norms and preventing a crisis from occurring.

Discussion/Reflection Questions

Do you think were currently in a constitutional crisis?
If so, what role do you think citizens play in solving it?
In a situation similar to that described above where one branch ignores the constitutional order of another, how should we go about enforcing the rule of law?
Are you concerned that the pace at which current events develops today will prevent us from either identifying a constitutional crisis or being able to handle it when we spot it?
What role do you think the rising polarization of politics will have in being able to handle and correct a constitutional crisis if one were to develop?

Interview Highlights

[3:00] What is a constitutional crisis?

Jud: You can think of the constitution as a road map. One way to think about a constitutional crisis is that the government is going off the road or off the rails. Such a situation could be the fault of the public or it could be the fault of the document itself. For example, we might face a situation that the constitution does provide guidance for. Fortunately, this doesn’t happen very much in our system. It is also possible that the constitution does provide clear guidance, but we have a single actor who simply refused to follow this guidance and do what they want.

[4:30] Are there examples where we’ve been in such a situation in the past?

Jud: I think the biggest example that people would look at would be the secession preceding the Civil War. The constitution doesn’t really tell us what to do when a state wants to leave. This arguably led to a war over this issue. My definition is rather strict. Therefore, I wouldn’t say we’ve face many constitutional crisis type situations. One reason I’m strict on my definition is because of a potential “boy who cried wolf” problem. Here, someone complains of so many false emergencies that no one listens when there is an actual crisis. Another reason for the strict definition is that being in a crisis situation leads to serious uses of force potentially.

[7:15] We’ve heard people around the president say that he is above the law. Do you have any thoughts on that?

Jud: There is a strong respect within the constitution for the idea that while the president isn’t completely above the law, he is subject to it only through his own actions in executing the law. Under the constitution, the executive is charged with ensuring that the law is effectively carried out. Because of this, there is little the other branches can do to control the executive. While this does not mean that the executive is above the law, it is not the place of another branch, such as congress, to appoint a prosecutor to investigate the executive. Given this level of power, it’s incredibly important that the executive respect the law. To ensure this is done, there are many norms in place to sort of curtail the actions of the executive. What concerns me with this administration is at best an indifference and at worst a hostility towards these constitutional norms.

[9:42] What happens when these norms are violated?

Jud: There isn’t law about what happens when these norms are violated. However, elections can serve as a control when these norms are violated. When an executive violates a particular constitutional norm, they can be voted out of office in a following election. There is also the impeachment process. This is largely a political control option. While the constitution does spell out specifically what can be the ground for impeachment, whether the house goes through with filing charges or not is largely a political decision.

[11:00] Another view of a constitutional crisis is when one branch doesn’t follow order from another. Could you speak to a situation like this in terms of a constitutional crisis?

Jud: I think something like this with the executive not following an action by the legislative, such as overriding a presidential veto, absolutely is a constitutional crisis. However, it is possible that this stems from a legitimate dispute between the branches as to what the constitution requires. This is also a situation where there is not really a great solution or end game. Here, one branch is going to have its power limited and look inferior to another. However, if nothing is done, then we all loose as the constitution is disrespected. Something similar to this happened during the Civil War when Lincoln disregarded an order by the Supreme Court to honor the right to habeas corpus. Eventually, the country fought through it and got past it. However, the court perhaps lost some power and legitimacy as a result of the executive never really being held accountable for this.

[14:00] Today we see the events in the news greatly outpace development of the law. How do you see this impacting respect for the constitution and law?

Jud: It seems as thought our political life is on fast forward right now. I think this has a numbing effect on those who watch the legal actions of the administration.

[15:00] As a constitutional scholar, how does it make you feel to see constitutional norms being eroded?

Jud: It does make me concerned. One thing I think the president has yet to understand and respect is the fact that we have a set of legal norms to protect the proper role of constitutional governance. Many of the factors that influence constitutional governance will never see the inside of a court. These important matter will be decided by those in the administration. To ensure that these decisions are proper and respect the constitution, there is a large number of procedures in place. The president simply doesn’t show a lot of respect for these procedures. That being said, I’m confident because there are still a lot of very talented dedicated public servants in departments all around the government.