Law Through A Kaleidoscope

Reading Time: 5 minutes

It all started with a inflammatory headline on an article shared on Mastodon. It was from a politically aligned media site that was suggesting that a new Congressional Bill would deprive Americans of rights. I read the article and then I read the bill. By the time I returned to Mastodon, I saw three or four more hot takes on this article and that it was being syndicated. The law does not say when the media said it did but, as I found when I read the article again, the reporter wasn’t claiming what their headline said: it was people quoted in the article. The whole mess reinforced my underlying frustrations with media whenever it comes to the law.

While I am an avid follower of journalistic sites like The Poynter Institute and The Nieman Journalism Lab, I find “journalism” to be very much an in-the-eye-of-the-beholder label. It’s a bit like lawyer professionalism. We know what we hope it should be and then we see lawyers and law firms act in manners that seem obviously contrary.

This article was from The Intercept. At least they linked to the bill introduced in the House. I prefer the one on Congress.gov, where you can read the text on the web page and without a PDF reader. But at least they provided some way to confirm the law.

Obscurity Intentionally

It’s far more common to find stories that provide no link. I get it. This is extra work for a media employee and, as law librarians know, finding a government document isn’t always that easy. The purported copyright of the commercial databases in public documents forces media to have to hunt for public domain versions.

I was interested (for research purposes, of course, ahem-hem, to show students a short order rule and test) in the court’s denial of a discovery extension in Lively v. Wayfarer. A defendant had attempted to extend the deadline in order to depose Taylor Swift but the court found that their request was speculative. Rolling Stone covered the decision but all of its links are to its own content. Same with CNN, ABC, and Variety.

The case is in front of the Southern District of New York. For reasons that are unfathomable to me, it’s not considered a special interest case. Even funnier, when you click on the “More Special Interest Cases”, you get an Access Denied message. When our courts are so unreliable at exposing their own workings, you can see why journalists and others fail to provide origin documents.

Some other researchers had already found the document and so I was able to unearth it on CourtListener in the RECAP archive. (Note to self: follow up on the Furry Puppet Studio v. Fall Out Boy unreported case). Easy enough, when you know how.

This is the thing. When a case is notorious for some reason, there’s a good chance someone has grabbed the underlying legal information already. I don’t like that PACER charges but it is also not extortionate for commercial publishing platforms like most media sites. In fact, if they all participated in RECAP, it would be possible to substantially lessen the overall costs for all journalists to provide deep links to the actual legal documents they’re discussing.

There will come a time when the United States actually makes its public documents public, without obstacles like PACER impeding access. But even the current state isn’t unmanageable for people who are paid to tell a story and show their work in how they are connecting facts within their writing.

Lowest Bar: Congress

I have zero patience for journalists that don’t link to Congress. The Office of Law Revision Counsel’s version of the U.S.C. is still one of the ugliest versions of Federal legislation I’ve used. They’re lucky that Federal accessibility laws don’t apply to them. But at least the law is there. Still, I always start at Congress.gov unless I’m desperate.

Still, once you have a link, one has to wonder how many people click through to read it. My guess is that it is low. So the journalist is balancing time wasted getting the link with the low likelihood that someone will read it. Shoot, we know that people who see the social message are probably not reading the journalist’s article either, so perhaps expecting them to review the law is too much.

Do we lower or eliminate our expectations though? Or do we keep them raised or provide ways for people to see their laws themselves. I think that, if the journalist in this case, the law was published within the article, the headline would have been different or readers would not have been potentially misled.

The headline was that a new bill would give the Secretary of State “‘Thought Police‘ power to revoke U.S. passports.” That isn’t what the law says. It isn’t even close. And I am no friend of the current Administration, in particular the current Secretary of State, so this is damaging in two ways. It encourages an incorrect statement of the law to percolate and the journalist themselves does not seem to have bothered to read the law themselves.

In between writing this post and it being published, Rep. Mast introduced an amendment to remove this section from his bill. The Committee on Foreign Relations staff said it was introduced to avoid the section becoming a distraction. I’m not sure it’s much of a win.

We talk about what journalist’s roles should be. Like law librarians, there are lines that are not supposed to get crossed. Journalists are in theory supposed to provide a balanced account of the facts at their disposal. But I think that, if they think or are aware that people will not click through to the law they cite, they can take some time to include the language of the law and explain it. This is not adding bias to the story.

The law is a huge bill. For example, in one section, it outlines a ban on United States Embassies flying flags, a definition that would exclude the Pride flag, for instance. The passport part of the bill is very small. This section says:

• if you’ve been charged or convicted under criminal statutes related to foreign terrorists, 18 USC 2339A or 2339B, or you’ve knowingly aided or assisted a foreign terrorist organization (apparently domestic terrorists are okay), then
• the Secretary of State can revoke your passport but
• “Nothing in this section may be construed or applied so as to abridge the exercise of rights under the first amendment to the Constitution of the United States”

That last part is pretty important if your headline is about punishment for speech. The story conflates punishing immigrants for speech (which is a violation before the courts right now) with citizens. The ideal is that all immigrants are able to access Constitutional protections but I think that has always been an ideal, not a guarantee. But a passport is not a right. “The Secretary of State may grant and issue passports” to “those owing allegiance…to the United States.” About half of Americans have one (170 million of 342 million).

As I know well, passports are not the same as citizenship. The revocation of a passport is potentially an inconvenience for a citizen, but the law has exceptions as well as due process built-in. Unlike in Russia and Belarus, it is not the stripping away of citizenship, potentially leaving a person stateless. The language of the proposed law—which mimics existing law for sex tourists, by the way—seems important considering how inflammatory the rest of the story seems. It also calls into question some of the reliability of the quoted special interests.

I mean, I get that we have a huge civics and “how the law works” gap. Even with lawyers.

It could hardly hurt if media who are discussing legal issues brought the law into closer proximity with readers.

I’m not a fan of this law. I think the current Administration is likely to designate the 4-H and Boy Scouts terrorist organizations if they’re not careful. It seems like they are already re-orienting away from facts—for example, with the deletion of government data about how white supremacists and right-wing groups are driving domestic terrorism (saved on the Wayback Machine)—to support their planned attacks on disagreeable speech. It begs the question by the Secretary of State is so focused on domestic issues. At the same time, fear mongering and misrepresenting what the current legal documents say does a disservice to trust in journalism. When the law is at our fingertips, we should be encouraging others to read the laws that they are bound and may be affected by. Journalists who want to be taken seriously should be willing and capable of bringing law into context for their readers.