The Winter Garden is one of New York City's largest and most beautiful indoor public spaces. Graced by giant palm trees that would look impressive on Sunset Boulevard and a vast skylight that provides year-round balmy sunlight, this crossroads of Manhattan's Battery Park City became a symbol of Downtown's rebirth when it was reconstructed after being devastated in the September 11 attacks.

Yet this crucial community gathering space--which provides a much-needed public square that's hospitable throughout the year--is actually privately owned by Brookfield Office Properties, a multinational real-estate developer that owns the World Financial Center that the Winter Garden is a part of, and has received some recent media attention as the owner of Liberty Plaza, the initial site of the Occupy Wall Street protest movement. (Brookfield in recent years has rebranded Liberty Plaza as Zuccotti Park, after the chair of Brookfield's board, former New York City Planning Commission chair John Zuccotti. Incidentally, another of Brookfield's directors, Diana Taylor, also serves as girlfriend to New York City Mayor Michael Bloomberg.)

The Winter Garden is not a favor that Brookfield is doing for the citizens of New York City out of the goodness of its corporate heart, any more than Liberty Plaza is; such amenities, as they're called, are promised by developers to the city in exchange for various exceptions and relaxations of zoning and other rules that make the developers' projects more profitable.

So as paradoxical as it sounds, these privately owned public spaces truly do belong to the public; their corporate managers have invited us in in exchange for official concessions, and they can't revoke that invitation on a whim--or because they object to community members using that space to express political viewpoints, as people are wont to do in a public square.

But that's exactly what the city of New York, presumably acting on behalf of Brookfield, did on December 12, when it arrested 17 people who were either participating in or reporting on an Occupy Wall Street protest--directed against Brookfield as the landowner of Liberty Plaza and thus the beneficiary of New York City's eviction of OWS from the park. One of those arrested was FAIR intern John Knefel, a writer, comedian and co-producer (with his sister Molly) of an Internet radio show called Radio Dispatch.

The arrestees were charged with criminal trespass and in some cases with resisting arrest, but the actual offense was attempt to engage in political life--in attempting to persuade others, or in conveying via journalism those attempts to persuade--in what the police (at the orders of Bloomberg and/or Brookfield) had arbitrarily determined to be a politics-free zone. They would be held for some 37 hours before being taken before a judge to be arraigned and released.

In an article for Salon (12/13/11), Molly Knefel described what happened when people tried to exercise First Amendment rights in the Winter Garden:

The protesters--maybe 100 or so--had gathered in the center of the floor and were dancing and chanting, "Occupy Brookfield!"  A long line of police began to form in the periphery, and John and the other media people dispersed to take pictures.  As the police formed an outer circle to surround the large group, the crowd began to disperse.  Many of the protesters headed up the marble staircase away from the cops, and a small group bolted up a nearby escalator.

That was when everything escalated completely out of control.  The escalator was stopped.  Suddenly, the outer circle of cops was swarming in and violently pushing people away.  John had been standing near the crowd, taking video.  I was about 20 feet from him, and when I looked back in his direction, I saw his blue hood on the ground.  I ran toward him and slid to the ground, leaning in between people's knees to take pictures.  John was face down on the ground being handcuffed, his glasses flung across the floor and people screaming, "Stop, stop, he didn’t do anything!"

A cop pulled me up by my shoulders and told me to step back.  I said, "He's my brother."  Several cops pushed me away as I asked, "What is he being arrested for?  He was taking pictures."  A cop said, "He didn’t produce an official press pass, so that means he was resisting arrest."

On Twitter,  (12/13/11), Molly noted: "There were no instructions that I heard. They only told us to 'get out' after the violent arrests started." Which is patently unfair, but in a way more honest than going through the rigamarole about announcing that protesters and journalists are operating in a space where the First Amendment is suspended--the NYPD prefers the term "frozen zone." If the government is going to drive people out of public spaces for engaging in the most crucial forms of public participation, there's really no need to create the impression that the citizenry have any choice in the matter.

When former FAIR staffer Sam Husseini found out that Saudi Prince Turki al-Faisal al-Sa'ud would be speaking at the National Press Club, he thought it might be a good chance to ask a tough question. The National Press Club apparently didn't like that idea.

Husseini writes:

Before the end of the day, I'd received a letter informing me that I was suspended from the National Press Club "due to your conduct at a news conference." The letter, signed by the executive director of the Club, William McCarren, accused me of violating rules prohibiting "boisterous and unseemly conduct or language."

Want to know what the National Press Club thinks is unseemly conduct? Watch for yourself:

For the record, the National Press Club has been taken other actions distinctly at odds with a free and aggressive press. In 2001, Russell Mokhiber and Robert Weissman wrote about how the Press Club seemed to want to protect Henry Kissinger from critical questions. The moderator explained that if questions about war crimes were asked, it "would take so much time to explain all of the context."

In 2005, Mokhiber attempted to go to a U.S. News & World Report event at the Press Club celebrating "America's Best Leaders." The sponsor? Oil giant BP.

Mokhiber was blocked from entering the event--which, for the record, was being held in the First Amendment Lounge. Why? Probably because Mokihber had attended another U.S. News event at the Press Club earlier that month that was sponsored by tobacco giant Altria. That time Mokhiber asked a question:

Senator Hagel said transparency is critical. What's the deal exactly between U.S. News & World Report and Altria? What are the details of the sponsorship? Members of the social responsibility community refuse to invest in tobacco companies. Did you find it a little odd that a panel on corporate responsibility is being sponsored by a tobacco company?

You can see why the Press Club might not want to have these people in the room. They ask the wrong kinds of questions.

One more thing about free speech hero Michael Bloomberg's shutdown of Occupy Wall Street.

During the early morning raid on the Occupy Wall Street camp journalists were blocked from covering much of what was happening. Josh Stearns from Free Press has a rundown--as he points out, "By dawn, 10 journalists, including reporters from NPR, the Associated Press and the New York Daily News, had been arrested."

There was a good local TV news segment about the media clampdown, courtesy of the New York NBC affiliate. It's rare to see an image like this on your TV screen (click the image to watch the report):

The New York Times, writing about Bloomberg's crackdown on Occupy Wall Street, said this:

For the mayor, a champion of the First Amendment....

I am not sure what is required to deserve the title of "champion," but was it a different Michael Bloomberg who was mayor during the 2004 Republican convention, which saw mass arrests, preventive detention and surveillance/infiltration of protest groups?

What's next--Bloomberg the Fourth Amendment champion?

If a single foreign national is rounded up and put in jail because of a leaked cable, this entire, anarchic exercise in "freedom" stands as a human disaster. Assange is a criminal. He's the one who should be in jail.
--Joe Klein, Swampland (12/1/10)

Actually, Julian Assange didn't leak anything--he can't, because he didn't have access to classified documents. Someone (or someones) who did have such access leaked those documents to Assange's WikiLeaks, which, as a journalistic organization, made them available to the world, both directly and through other media partners.

This distinction, which is widely ignored in commentary on WikiLeaks, is actually quite important, because the ethical obligations of a government official with a security clearance are quite different from those of a media outlet. An official makes a promise to protect classified information, and should break that promise only when the duty to keep one's promises is outweighed by the public interest in disclosing wrongdoing. Journalists, on the other hand, are not in the business of protecting secrets, and should have a general presumption in favor of informing the public unless disclosure would cause specific foreseeable harms. The two ethical situations are pretty much opposite.

To treat Assange as a leaker when he is, in fact, a journalist is not only morally confusing, it's quite dangerous to journalists in general. If the government can declare Assange to be spy or a terrorist because he's published classified documents he's received, every investigative journalist who does the same thing is in deep trouble.

The list of First Amendment-trampling rules for Guantanamo reporters makes for dispiriting reading in today's New York Times (7/21/10)--e.g., "If information the government deems protected is inadvertently disclosed, the Pentagon can order reporters not to reveal it."

But perhaps the most discouraging part of Jeremy Peters' article is the list of reporters who fell afoul of a rule requiring them to refrain from publishing "secrets" that have already been widely reported: "Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Steven Edwards of Canwest and Paul Koring of the Globe and Mail in Toronto."

What do three of those four reporters have in common? That's right, they report for Canadian outlets. While it's nice that our neighbors to our north are taking in an interest in our government's ongoing efforts to find a way around our Constitution's protections for criminal suspects, it would be much nicer if U.S. outlets found the subject a high priority.  But, reports Peters:

Of the few American newspapers that still cover the commissions, the Herald is the only one that sends a reporter to Guantánamo on a routine basis. "I only go down there because nobody else does--to report on a court that nobody else can see," [Rosenberg] said.

Media Detector, a New York Times blog, has a post today (6/14/10) about a comic book adaptation of James Joyce's Ulysses that Apple is insisting be bowdlerized before it can be turned into an app for the iPad--replacing an image of a bare-breasted "milk lady" with a close-up of her face. While calling Apple's decision "disappointing," artist Robert Berry told Media Detector he

did not feel "remotely censored by Apple." "It's their rules," he said. "We’re coming to their dinner party at their house."

When you watch TV on your Sony television, you're not attending a dinner party at Sony's house, at which Sony gets to set the rules. Nor, when you surf the Web on your IBM PC, are you IBM's guests, subject to whatever arbitrary choices IBM wants to make about what you can and cannot see.

If the iPad does become one of the main ways by which people access information and art, as Apple surely hopes, and Apple is able to treat that medium as a private preserve in which free speech rules do not apply, this will distinguish the iPad as a technological advance that is also a democratic retreat.

The Service Employees International Union (SEIU) organized protests in Maryland at the homes of several bank executives, along with follow-up rallies in Washington, D.C., at bank branches and offices.

The events went largely uncovered by the Washington Post, which led Post ombud Andrew Alexander (5/29/10) to wonder  why the paper missed a major labor story that was covered by Mother Jones (5/16/10) and the Nation (5/20/10), among others.

The story has been getting a lot of attention from right-wing activists, though, who are arguing that a protest outside a banker's home is an outrageous infringement on someone's private life. A more important point is whether the Post is paying attention to labor activism:

But Huffington Post reporter Arthur Delaney said he learned of the protests from SEIU sources, which raises the question of whether the [Washington] Post is sufficiently plugged into the nation's most politically active labor organization.

That's a good point.

Unfortunately, Alexander's thoughts about what coverage of union activism should look like is a little, well, anti-union:

There were numerous ways the Post could have gotten back in the game on the story. For example, how did Chevy Chase neighbors react? Did protesters break trespass laws? When does First Amendment expression infringe on residential privacy? Does President Obama, who enjoyed SEIU electoral support, sanction these types of protests? And is a blitz on private residences a new protest tactic?

I don't know--maybe a more important question than what Obama thinks of the protests might be, "What were they protesting?"

Glenn Beck says progressives are trying to "fundamentally transform the country" by rendering the Constitution "irrelevant" ("In 1920, they stopped studying the Constitution in law school and started studying case law!"), and by expunging from history the role "religion and morals" played in our founding.

On his April 28 show, Beck announced the launch of Founders Fridays segment, a special feature by which Beck intends to counter these progressive lies with...the truth:

Every Friday is going to be Founders' Fridays on the program, at least for the next month. And if nobody watches, well, then, we'll keep doing it anyway. We are going to try to repair some of the damage that is being done by truth. Truth. Truth is like fire. It will burn. It will burn everything that is impure. It will set on fire all lies. But it will not consume the truth. So we'll set a few fires by spewing the truth.

Don't think that Beck will have to do all this truth-spewing and fire-setting by himself; he'll have help from guests who "have history":

We're going to have some people in here who have history, who know the Founders better than anybody else on Earth. One of the guys who's going to be joining us for some of these is David Barton, author of Original Intent and founder of Wall Builders, an organization dedicated to presenting America's forgotten history and heroes.

In "The Right's Library of Fake Quotes," Extra! (4/10) documents many instances where conservatives have promoted fabricated historical quotes, religious and otherwise:

One of the most prolific purveyors of bogus founder quotes is Christian theocrat David Barton. Though not a household name, Barton's tireless efforts to construct a Christian origin story for the United States have been praised by the likes of Pat Robertson and Newt Gingrich (Church & State, 7-8/96). His 1989 book The Myth of Separation attributed bogus quotes to Washington (''It is impossible to rightly govern the world without God and the Bible''), Jefferson ("I have always said and always will say that the studious perusal of the Sacred Volume will make us better citizens") and Patrick Henry ("It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ"). Barton has also misattributed the "Ten Commandments" quote to Madison.

In 1996 Barton admitted that these and nine other quotes he'd been circulating in his writings, videotapes and live appearances were either false or unverifiable (Church & State, 7-8/96). But Barton's reputation suffered little from the fraud, according to Rob Boston of Americans United for Separation of Church & State. "He's doing better than ever," Boston told Extra!, noting that since 1996 Barton has served as vice-chair of the Texas GOP, and now sits on the Texas state committee advising the state's board of education on history and social studies curriculum, "despite no history credentials."

But Barton is no stranger to the show, having appeared several times with Beck in the recent past (e.g. 4/30/10, 4/8/10, 3/15/10.) And Barton has apparently had a real impact on Beck, who repeated one of the spurious George Washington quotes he is famous for promoting on his March 5 show: "It is impossible to rightly govern the world without God and the Bible."

Beck and Barton should thank God that truth doesn't really burn lies.

The Obama Justice Department--or at least one of its top prosecutors--is cracking down on investigative reporting without regard for the First Amendment.

The first disturbing development was the indictment of NSA whistleblower Thomas Drake, whose leaks to the Baltimore Sun helped expose how the NSA's warrantless spying program deliberately failed to protect the privacy of U.S. citizens.

Now the same prosecutor who indicted Drake--William Welch, who stepped down from a prior post as head of the Justice Department's public integrity unit after botching the prosecution of Sen. Ted Stevens (R.-Alaska)--has opened a new front against freedom of the press. Welch subpoenaed New York Times reporter James Risen to reveal his sources for the account in his book of a CIA operation that may have given Iran important information about how to create a nuclear bomb in the course of trying to infiltrate the Iranian nuclear program. The New York Times reports today (4/29/10):

The Obama administration is seeking to compel a writer to testify about his confidential sources for a 2006 book about the Central Intelligence Agency, a rare step that was authorized by Attorney General Eric H. Holder Jr.

The author, James Risen, who is a reporter for the New York Times, received a subpoena on Monday requiring him to provide documents and to testify May 4 before a grand jury in Alexandria, Va., about his sources for a chapter of his book, State of War: The Secret History of the CIA and the Bush Administration. The chapter largely focuses on problems with a covert CIA effort to disrupt alleged Iranian nuclear weapons research....

The Bush administration had sought Mr. Risen's cooperation in identifying his sources for the Iran chapter of his book, and it obtained an earlier subpoena against him in January 2008 under Attorney General Michael B. Mukasey. But Mr. Risen fought the subpoena, and never had to testify before it expired last summer. That left it up to Mr. Holder to decide whether to press forward with the matter by seeking a new subpoena.

If a judge does not agree to quash the subpoena and Mr. Risen still refuses to comply, he risks being held in contempt of court.

The Times report alludes to the case of Judith Miller, who was subpoenaed by independent counsel Patrick Fitzgerald to reveal which Bush administration official had revealed that the Valerie Plame, the wife of a prominent Bush critic, was an undercover CIA officer. FAIR encouraged Miller to cooperate with the prosecutor in that case, because no genuine public interest was served in protecting the identity of an official who had used classified information to punish a government critic.

In both the cases pursued by Welch, on the other hand, the targets are legitimate whistleblowers who revealed information that was of vital concern to the public. Risen has announced through his lawyer that he will fight the subpoena in court, and if he gets a judge who respects the First Amendment he should succeed. If Barack Obama and Eric Holder respect the First Amendment, meanwhile, they will rein in these disturbing efforts to squelch journalistic scrutiny of the state.

I'm having trouble getting my mind around the legal case against Gizmodo editor Jason Chen, who purchased an iPhone prototype that was apparently mislaid in a bar, published photographs of it on the Gawker-affiliated blog, and then returned it to Apple when the company asked for its property back.

Here's a thought experiment: Suppose you're out walking and a neighbor says to you: "Look at this cool dog I found.  I think I'm going to keep him."  You think you know who actually owns the dog--let's call him Steve--and so you offer the neighbor some money to give it to you instead.  You take a picture of the dog and make a flyer that says, "Steve, I think this is your dog."  When Steve sees your flyer and calls you, you give him his dog back.

Now, are you guilty of grand theft dog?  I'm no lawyer, but I have to think the answer is obviously no--because you have no intention of keeping Steve's dog.

The main difference between the dog situation and the iPhone case is that--even though in each case the stolen property is brought to the attention of and returned to the owner--the primary motivation for purchasing the property is not returning it, but publishing a news story about it. Does this journalistic intention really transform the action from a good deed into a potential felony?

It seems that what the 17 police agencies involved in this case are protecting is not Apple's physical property but its secrets. The spectacle of cops seizing computers from a journalist's home in defense of corporate secrecy is, as CJR's Ryan Chittum (4/26/10) suggests, more than a little creepy.

Appearing on the O'Reilly Factor (3/25/10) to discuss being named by Joy Behar as one of the media figures the View panelist (3/22/10) says are inspiring hate among Tea Party activists ("There is a difference between free speech and hate speech, and we've been listening to it from Beck and Limbaugh now. And these people are all juiced up by these two. That's what's happening"), Glenn Beck attempted to demonstrate his tolerance for his political foes in the following exchange:

BECK: Have you or I ever said Michael Moore shouldn't be allowed to make a movie?

O'REILLY: No.

BECK: Michael Moore shouldn't be allowed to speak? Michael Moore shouldn't have his own TV show? Never.

O'REILLY: Never. Never.

BECK: Never. Because we believe in freedom of speech. George Washington called it the battlefield of ideas.

O'REILLY: Right.

While it may be true to say that Beck has never expressed a wish to see Michael Moore censored, precisely, he has expressed a desire to kill Moore with his bare hands:

I'm thinking about killing Michael Moore, and I'm wondering if I could kill him myself, or if I would need to hire somebody to do it. No, I think I could. I think he could be looking me in the eye, you know, and I could just be choking the life out--is this wrong?

Reasonable people might see this as a desire for an extreme form of censorship--and hateful to boot.

UPDATE: O'Reilly too has fantasized about assaulting Moore--in a non-censorious way, of course.  See FAIR Blog, 10/6/09.

The First Amendment confirms the freedom to think for ourselves.

--Supreme Court Justice Anthony Kennedy (1/21/10), granting corporations the power to spend untold billions to do our thinking for us

The problem with Rupert Murdoch's proposal to create an online news consortium, in which major publishers would all band together to put their news content behind pay walls (L.A. Times, 8/21/09), is that it's not illegal to discuss news events online.  And you don't want to make it illegal to discuss news events online.

And yet, absent a law forbidding such discussions, there's nothing to stop someone from buying subscriptions to the various pay news sites and starting a website (like this one, but more so) in which they write about what they've learned from them--thus offering for free what the Murdoch's news trust would be trying to get people to pay for.  You can't copyright facts, and any attempt to change the law to allow publishers to do so would run straight into the shoals of the First Amendment and the concept of democracy itself.

Let's say you could keep the "tech tapeworms in the intestines of the Internet" (as a Murdoch editor memorably calls them) from passing along the news for free.  According to the L.A. Times piece, News Corp points to the Wall Street Journal as a success story with its website's 1 million paying customers, and has encouraged the New York Times Co., Washington Post Co., Hearst Corp. and Tribune Co. to follow its lead. Imagine that each of those publishers was as successful, and that the paying readers they attracted did not significantly overlap (both rather unrealistic assumptions, it strikes me)--that would be great news for publishers but something of a disaster for democracy, with the news generated by these leading (and not-so-leading) outlets confined to an elite audience of 5 million--or roughly 1-2 percent of the citizenry.

It's not like we have a particularly well-informed electorate as it is; if Murdoch's plan for an online news cartel is at all successful, though, today's voters may seem like Encyclopedia Brown.

Richard Posner is the sort of judge who gets mentioned as a possible Supreme Court nominee because of his supposed brilliance. But, then, he's also the person who wrote this:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

With the first suggestion, does Posner mean that copyright laws should forbid people from posting other people's material online without permission, or hacking into subscriber-only sites? Because copyright laws already do that. If he means that whenever someone puts up something on a website, you have to get their permission before you can type in the url,  that would be quite bizarre. What does he mean?

The second part is no less strange. As an anonymous commenter points out, prohibiting links would be like prohibiting footnotes; you could also compare it to outlawing card catalogs, or phone directories.  And the idea that linking to a newspaper's website somehow harms the newspaper is nutty; newspapers don't want people to stop linking to them. (They would like people to give them money for doing something that people have an inherent 1st Amendment right to do, but that's a different question.)

The gap between the federal Appeals Court judge's understanding of copyright law and the Internet commenter's is striking.  Maybe Anonymous should be nominated to the Supreme Court?