REPORT ON THE STATUS OF THE FIRST AMENDMENT

Report on the Status of the

First Amendment

By Gene Policinski

In the Bill of Rights, the First Amendment’s “blue collar” freedoms lead off.

Those five freedoms — religion, speech, press, assembly and petition — are what most Americans “go to work” with every day. We employ those core rights daily, from the comments we post fearlessly on the web on virtually any subject, the political and social associations we proclaim in every Facebook post, and the office political debates we join to the diversity of religious faiths that a majority of us still choose to adopt.

So it’s more than a bit ironic that the U.S. Supreme Court started off 2016 with Friedrichs v. California Teachers Association, a case involving public employee union dues that is seen by many union leaders as the greatest threat in 40 years to the everyday political power wielded for more than a century by these collective blue-collar worker groups.

Given that 2016 is a political year, the Friedrichs case took on an even higher profile when it was argued in January, with a close decision going against a California public employee union widely expected. But the death of Associate Justice Antonin Scalia on Feb. 13 ultimately led to a 4-4 tie on the court.

Announced March 28, the 4-4 split left intact a lower court decision that favored a system by which a nonmember must pay a public employee union a “fair share” of dues for negotiating wages and benefits that all workers enjoy.

In 1977, the Supreme Court approved a system that recognizes such collective bargaining benefits accrue to all workers — but that permitted any individual to avoid paying a portion of dues to be used for political activities, so that Democrats were not compelled to pay to subsidize campaign support for Republicans and vice versa.

The challenge the court heard Jan. 11 was raised by 10 conservative California teachers who argued that even having to pay dues in support of collective bargaining against their will was a violation of their First Amendment free speech rights — advancing the idea that having the right to speak also must include the right not to speak.

While some say a decision in favor of the 10 teachers will have limited impact — noting some 25 states already forbid such “agency” payments by all — others claim throwing out the current system would be an intended body blow to public sector unions, using the First Amendment argument as a ruse.

The latter claim is bolstered by statistics about union membership. Nationwide, according to the U.S. Bureau of Labor Statistics, “in 2013 there were 14.5 million members in the U.S., compared with 17.7 million in 1983. In 2013, the percentage of workers belonging to a union was 11.3%, compared to 20.1% in 1983. The rate for the private sector was 6.7%, and for the public sector 35.3%.”

The numbers also tilt higher for public sector unions in a number of states considered Democratic strongholds — which, advocates of the present system say, makes the challenge on free speech grounds even more suspect. Cutting public employee unions’ access to fees from all workers will weaken — if not destroy — such unions as a powerful political force, say critics of the California challenge.

Critics of the Roberts Court see a larger pattern in the expected outcome — a trend in which the court, while citing First Amendment values, effectively clears a path for the wealthy to influence elections. Most often cited is the court’s 2010 ruling, Citizens United, which removed most spending limits for corporations and unions in supporting political campaigns and candidates. To those critics, the decision opened a torrent of special interest spending

by wealthy, mostly conservative millionaires.

One important element in the debate over election spending may be the relatively new — and unsettling — presence of the web, which can make a single voice or example during a political campaign shout out to the world, even as well-funded corporate or union web campaigns fail to show results.

And a mitigating factor for union advocates may be to recall that in the last presidential election season, despite billions spent by rich individuals, corporations and unions, a turning point was the viral posting by one person of a surreptitious cellphone camera video of GOP nominee Mitt Romney criticizing “47 percent” of voters he termed irresponsible and overly dependent on government assistance.

Still, the concentration of large public employee unions in larger, key electoral states like New York and California — which generally tilt to Democratic candidates — put a political tinge on the expected court action.

In the other case on the court’s docket with direct and significant First Amendment applications, Zubik v. Burwell (and the several similar cases consolidated into it), the court sidestepped a decision — deadlocking at 4-4 – sending it back for clarification of issues, to be argued at a later time.

In Zubik, advocates of the position held by a group of nonprofit religious institutions — including the Catholic nuns of the order of The Little Sisters of the Poor — said the court should overturn a system under which the groups can opt out entirely from a process in which they do not directly provide contraceptive care, but do have to fill out a form that enables employees to receive such services under insurance by a third-party provider. The third party is then reimbursed by the government.

The groups told the court March 22 that merely participating in such a “transfer” of service and funding means the government is “hijacking” their insurance plans and forcing them to “sin” by engaging in services to which they are morally opposed.

Proponents of the existing system say there is no “engagement” in simply filling out forms that permit employees to seek contraceptive coverage elsewhere. And they say nothing less than a constitutional threat of high order is embodied in the religious groups’ request: Allowing such a wide religious-objection loophole in this law raises the potential for similar broad religious belief challenges across a wide range of civil rights and other federal law.

There’s one more item — on the court’s horizon rather than this term’s docket — that has arisen and has major First Amendment (speech and association) and Fourth Amendment (search and seizure) implications: The spat between the FBI and Apple over “unlocking” an iPhone thought to contain some information pertinent to national security and the investigation of the San Bernardino terror shootings last December.

Make no mistake — the debate over whether or not Apple should create a means for the FBI to “unlock” one of its cellphones is a defining moment in the rollout of the 21st century’s mobile, connected world.

That the FBI found a third party and claims to have been able to unlock the phone without Apple’s help only defers the constitutional questions.

This Silicon Valley-Washington, D.C., faceoff raises issues of privacy and national security, of freedom of speech, and even foreign policy considerations with respect to repressive regimes and those governments hoping to track journalists’ sources.

And lest we forget, Apple’s stance flows from a long-held business-based decision to protect its brand with customers who prize the data protection built into iPhones. In a New York legal dispute with prosecutors last year, The Daily Beast reported that the company said, “forcing Apple to extract data … absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand.”

A federal magistrate — in what is said to be the first such order of its kind — had told Apple to create a new technological method that would allow government officials to override login safeguards built into its latest phones. One such method is to reconfigure phones to eliminate a feature in which a relatively small number of unsuccessful attempts — nine or 10 — will result in data being erased. If eliminated, so-called “brute force” efforts can find the right password using supercomputers to run through all potential combinations.

FBI Director James Comey told Congress the bureau had been locked out of — and presumably stopped short of the maximum number of attempts to unlock — one of the shooter’s phones in attempting to gather evidence about the San Bernardino massacre. The federal magistrate’s demand — which she vacated March 29 — was based on the All Writs Act of 1789, which permits courts to issue orders in matters outside specific statutes.

In a “letter to customers” posted early in the dispute, Apple CEO Tim Cook wrote that “the United States government has demanded that Apple take an unprecedented step which threatens the security of our customers … the U.S. government has asked us for something we simply do not have, and something we

The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers … the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”

consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”

Calling the request “chilling,” Cook said “In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.”

The Apple CEO defended his company, saying it has “no sympathy for terrorists,” and that the company has turned over requested data when asked and made Apple engineers available to offer “our best ideas on a number of investigative options at their disposal.”

Cook acknowledged the government considers the new version of the operating system to be a “one-time use,” but said such smartphones have become the repositories of “incredible amount of personal information … our music, our notes, our calendars and contacts, our financial information and health data, even where we have been and where we are going.”

Once there is a “key” to gain access to such data, Cook said, “the technique could be used over and over again, on any number of devices … the equivalent of a

master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

Critics of giving government such methods to decipher communication — or of even creating such keys for company use if compelled by a court order — say it also will pave the way for skilled terrorists to undermine web security, potentially allow repressive regimes to track down dissidents and thwart press attempts to uncover corruption and human rights violations. Ironically, the White House criticized a similar Chinese government initiative regarding encryption override several months ago as antithetical to democratic reforms.

Cook’s letter said, “While we believe the FBI’s intentions are good … ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”

In the end, a common view is that Apple and other tech firms fear that a single government request to override access protection — whether it’s called “backdoor” or just a one-time tool — will lead to multiple such “one-time” requests, and eventually to a flood of such demands by governments that foment terror rather than fighting it.

Google CEO Sundar Pichai — whose company has the Android phone operating system, with encryption features similar to Apple’s iPhone system — said, “… we give law enforcement access to data based on a valid legal order. But that’s wholly different from requiring companies to enable hacking of customer devices and data.” Any number of leading social media and tech firms also lined up to support Apple.

The government’s case is not without support as well, particularly from those who see much less of an apocalyptic view of the order to Apple — and who downplay the broader significance of creating a onetime means to open a specific device. Comparisons are made to long-established legal precedents involving wiretaps and the limiting idea that Apple effectively can meet the order by providing the data to the FBI without handing over the software to unlock the phone. One NBC cybersecurity expert said the circumstance is no different than court orders to Facebook or email services for specific information about a specific accountholder.

Blair Reeves, a writer for On Medium, an online blogging platform aimed at the new tech world, said the public should “bear in mind: at no period in American history has there ever been any personal information, let alone any whole class of information, that was ever considered wholly immune to government access. The government has been wiretapping for a century. The FBI accessed bank records to catch mobsters in the ’30s. Location tracking — the old-fashioned way, in person — is as old as government itself.”

The legal thicket involving the Applegovernment faceoff is rooted in laws on the ever-evolving concepts of privacy, first outlined in the late 1880s; in Fourth Amendment protections against “unreasonable search and seizure”; and national security actions and laws that have changed direction through the years — most recently to accommodate threats from foreign terrorists; and the debate over national security and surveillance following leaks by Chelsea Manning and later by rogue NSA analyst Edward Snowden.

In 1928, in Olmstead v. United States, the Supreme Court said it was legal for federal officers to wiretap suspected bootleggers without a court order because tapping into the phone line did not involve an actual, physical intrusion into a home or business.

However, during the late 1960s, in Berger v. New York and more prominently in Katz v. United States, the court reversed its view about the such “premises” requirements, and the legal precepts grew to include a broader “reasonable expectation of privacy” over such things as phone lines that reach outside the “home.” And in 2012 in Jones v. United States, a case involving police use of a planted GPS device to track the movements of a suspected drug dealer was ruled an impermissible “search” without a court warrant.

In our new tech world of global communication and data-sharing, it’s not the content of phone calls that’s of so much interest as the “metadata” that can be gleaned from phones and stored transactional information about users, devices and activities.

This renewal of a national debate over privacy, security and information will be an important milestone in the evolution of the digital world — even if the government is able to sidestep the issue for the moment with help from a third party.

Apple’s argument about potential government misuse or criminal appropriation, and the government’s counter that the tradeoff with privacy in certain cases is needed to fight terrorists, will help decide how we balance safety and security in the future against a suspicion about government intrusion into our lives.

In a more pragmatic sense, the spat also is another historical marker in the changes wrought by new technology, in the manner in which the initial reaction by major news organizations to 2007 mass shootings on the Virginia Tech campus was the first time significant portions of staff were devoted to soliciting and using citizen emails and mobile phone videos rather than gathering news themselves, first-hand.

One 19th-century definition of privacy called it the “right to be let alone.” The 21stcentury question arising from this Apple technological challenge is whether we add “… except when the government gets to go through your phone data” to that definition.

On June 15, the Newseum Institute sponsored a mock Supreme Court session — with prior written briefs — to argue the issues raised in the confrontation, as Pear v. United States. Video, briefs and a report about that session can be found at www.newseuminstitute.org.

Two other First Amendment cases were decided during this term of the court: • Heffernan v. City of Paterson (N.J.): A police officer fired for alleged political activity challenged the action, saying he simply was picking up a yard sign while on duty — not campaigning. The court sent the case back to a lower court to determine if a neutral policy that recognizes First Amendment rights applies; • Shapiro v. McManus: A challenge to Maryland redistricting, rooted in the First Amendment right of association. The court returned the case to the Fourth Circuit, saying that appellate court failed to follow proper rules regarding the appeal.

The term ended with Republicans in Congress blocking any real attempt by President Barack Obama to fill the Scalia vacancy until the next president is in office — which also means that the court will spend considerable time in the next term facing the possibility of tied decisions.

Still, as Justice Stephen Breyer said of Scalia and the situation, in a Feb. 25 program at the Newseum: “We’ll miss him, but we’ll do our work.” Breyer noted that half of the court’s cases each year end in unanimous decisions, and that generally just 20 percent a year end in 5-4 decisions.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center.