2014 David A. Garfinkel Essay Contest
WHO WATCHES the WATCHERS?
Free Speech and Free Press in the Electronic Age
NYS Community College Grand Prize - $1,500
CUNY Community College Prize - $1,000
SUNY Community College Prize - $1,000
The contest is open to all CUNY and SUNY Community College students registered for the Fall Semester of 2013 or the Spring Semester of 2014.
Entries will be accepted starting December 13, 2013 through April 1, 2014
The 1st Amendment to the United States Constitution protects both citizens’ rights of free speech and the power of the press to obtain information and publish it without government censorship. This supports the free exchange of ideas which is considered the bedrock of political democracy. Decisions of the U.S. Supreme Court have upheld the crucial role of free speech and free press in American society.
Recent revelations in the press and by whistleblowers have produced information about the existence of secret government initiatives that now routinely gather huge quantities of data on Americans. These disclosures reveal the activities of courts not subject to scrutiny in the press. Such courts have apparent jurisdiction to make determinations involving privacy, secrecy and surveillance. Recently, the 4th Circuit U.S Court of Appeals held that reporters may be compelled to disclose the names of sources who provide them with classified information.
(Pick one or more of the topics below as the focus of your essay)
- Weighing the interests of national security and a free press, when do government actions like those described here violate the U.S. Constitution’s First Amendment protection of freedom of the press?
In May 2013 it was reported in the news that federal investigators had secretly and without notice seized two months of phone records of reporters and editors of The Associated Press, in what the news organization said was a “serious interference with A.P.’s constitutional rights to gather and report the news.” Though not told the reason for the seizure, it was strongly suggested at the time that it related to a continuing government investigation into the leaking of information about the Central Intelligence Agency’s disruption of a Yemen-based terrorist plot to bomb an airliner, i.e. an event involving national security. This incident represents one of many collisions of news organizations and federal investigators over government efforts to prevent the disclosure of national security information.
- The FISA Court (described below) conducts its reviews of requests for surveillance warrants hidden from the public and without providing an opportunity to any party to challenge or be informed about the proceedings. Discuss the constitutionality of the FISA Court rulings.
The Court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) issues classified decisions on requests for surveillance warrants from law enforcement officials. Initially set up to review requests by federal law enforcement agencies for surveillance warrants against suspected foreign intelligence agents, the Court’s jurisdiction has been steadily extended by legislation, particularly the Patriot Act. The FISA Court consists of 11 federal district court judges, appointed by the Chief Justice of the U.S. Supreme Court.
- Should Federal Press Shield legislation like the proposal described below be enacted in whole or in part when weighed against the interests of national security?
In mid-July 2013, the U.S. Court of Appeals for the Fourth Circuit held that: "There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in… even though the reporter promised confidentiality to his source." In May 2013, U.S. Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) introduced a bill that could become the Free Flow of Information Act (2013) that would establish a federal press shield law. The proposed law would protect a journalist’s confidential sources unless a court determines that the public interest requires such disclosure.
- Does the secret nature of court proceedings conducted under the Electronic Communications Privacy Act threaten the Rule of Law?
Stephen W. Smith, U.S. Magistrate Judge, Southern District of Texas, wrote an article in Harvard Law & Policy Review discussing the Electronic Communications Privacy Act of 1986 (ECPA). Magistrate Smith argues that federal magistrates preside over the most secret docket in America, and issue electronic surveillance orders that are permanently hidden from public view through sealed court files, gag orders, and delayed-notice. He points out that most of its sealed cases involve various forms of electronic surveillance, such as the monitoring of electronic communications and data transmitted by cell phones, personal computers, and other digital devices.
Previous Garfinkel Essay Contest Topics & Winners
2013: Cyberspace and the Law What are Our Rights and Responsibilities
The 2013 Grand Prize Winner Josh Pawlikowski receiving his prize at the Court of Appeals. (Seated are Chief Admin. Judge A. Gail Prudenti and First Deputy Chief Admin. Judge Lawrence K. Marks)
GRAND PRIZE: Josh Pawlikowski, Mohawk Valley Community College: Professor David Katz / ESSAY [PDF]
CUNY PRIZE: Ruby SIngh, Queensborough Community College: Professor Christine Mooney / ESSAY [PDF]
SUNY PRIZE: Zachary Field, Onondaga Community College: Professor Mary Bogin & Instructor David Hines / ESSAY [PDF]
2012: The Blue and the Gray: New York during The Civil War
NY Court of Appeals Courtroom
L to R Bottom Row: Amanda Griffin (3rd Place
Genesee CC), Mary Erckert (2nd Place,Erie CC),
Rodney Schulyer (1st Place Fulton-Montgomery CC)
L to R Top Row: Michael Benowitz (Assistant Director),
Marilyn Marcus (Executive Director), Frances Murray
(Court of Appeals Chief Reference Attorney)
1ST PRIZE: Amelia Weimar, Onondaga Community College / ESSAY [PDF]
2ND PRIZE: Kevin Volk, Genesee Community College / ESSAY [PDF]
3RD PRIZE: James Gerber, Borough of Manhattan Community College / ESSAY [PDF]