I'm a day late, but I'd be remiss if I didn't say that Pete is the best: Skilled, trustworthy, thoughtful, gracious, generous, funny. I've interviewed him for my work re: SCOTUS press relations, and I met him long before as a PIO intern at SCOTUS ... 1/x

https://twitter.com/washingtonpost/status/1527279980366864385

He took me to lunch, routinely answered my questions about SCOTUS, the law, journalism, etc. He impressed me because of his mastery of his beat and his manner: He was unfailingly kind. And I really appreciated his sense of humor. Once, when he called the PIO and I answered ...

I'm seeing photos that SCOTUS has set up barriers to keep protestors off the Court grounds/plaza. What gives? Is that a First Amendment violation? Some context/analysis ... 1/x A law enacted in 1949 says, effectively, the freedoms of speech and assembly do not apply as robustly on the Court grounds/plaza as they would in, say, a public park. I think that law deserves renewed scrutiny.

Have gotten good questions about whether this is unprecedented. Case outcomes/details have been leaked and reported before opinions have been released. This has happened several times, as my thread shows. Very rare but not unprecedented. However... 1/x

https://twitter.com/jonathanwpeters/status/1521309806430236672

At least in the Court’s modern history, I can think of only one other time when the draft of a written opinion possibly reached a reporter before the opinion was released. But it's distinguishable. It wasn’t a full draft of a majority opinion. It also wasn't released publicly.

It's remarkable, the leak of what appears to be an initial draft majority opinion. SCOTUS generally has kept its secrets and has kept confidential its internal processes and deliberations. But the Court does occasionally leak, and it has leaked before about Roe v. Wade. 1/x Its recorded history of leaks dates back to mid-19th century. Some leaks have commented on a decision after its release. Others have provided accounts of personal relationships/conflicts among the justices. And, yes, some opinions have leaked before release.

Re: Palin v. NYT: I'm not aware of another libel case in which a trial judge effectively and publicly granted a motion for a directed verdict while the jury continued to deliberate to reach a verdict. 1/ A directed verdict, by definition, is a ruling by a trial judge that takes a case from the jury because the evidence permits only one reasonable conclusion. The judge appears to be deferring here, but still: Unusual.

In light of the Tump complaints and specifically the claims that Facebook, Twitter and Google are state actors, here's a quick look at the state action doctrine ... It says (among other things) that the First Amendment protects you against infringements of your speech by government actors, not private actors. But the doctrine hasn't always been interpreted that way.

Larry Flynt, who has died, was a hugely controversial figure in First Amendment law. I'm teaching Hustler/Falwell this week, coincidentally. And if you want a deeper dive into his ideas and impact, I suggest @ProfClayCalvert's work, much of it w/ Robert Richards. A sample below: Larry Flynt and the First Amendment: freedomforuminstitute.org/2014/09/24/lar…

As the Fox News defense strategy is coming into focus in the Smartmatic case, @eriqgardner walks through the key arguments and offers helpful analysis in this @THR piece (bit.ly/3a3JQko), to which I added a few words about assigning responsibility for harm: I'll add that Fox News is invoking, among other things, the neutral-reportage privilege, which can protect a news org in limited circumstances from liability for republishing another's defamatory comments.

It's an understatement to say the Biden-Harris administration will face major challenges immediately that require a lot of attention (pandemic, economy, etc.), but I'm hopeful that press freedom will be a priority, too. A few of my thoughts ... (1/6) For the last four years, the president has waged an illiberal rhetorical campaign -- at rallies and in speeches and on Twitter -- against the press as an institution. He has falsely accused journalists of fabricating sources and of being "fake news." (2/6)

(1/x) Coverage of the effort to prevent distribution of Bolton's book should note Trump's remarkable record of attempting to interfere with speech/press activities -- and either failing or not following through. A sample of that record, dating to the announcement of candidacy: Trump admin suspended journalist Brian Karem's White House credentials. A court found that the suspension violated Karem's constitutional rights.

A reminder about the general right to record police activities in public places ... SCOTUS has not determined whether the recording of police officers performing their duties in public is protected by the First Amendment, but federal appeals courts have held that such a right exists, subject only to reasonable time, place, and manner restrictions.

A few thoughts about the Trump libel suit: The complaint is red meat for the president's base and won't succeed on the merits, but I'm still concerned about it. The essence of our political system is public participation, and baseless suits like this one can chill speech about newsworthy political issues—intimidating and discouraging others from speaking out, in view of the risk of being sued and the corresponding costs.

Adding to this: It's RARE for news orgs & journos to sue White House officials over access. CNN did in 81. Sherrill case in 77. Otherwise, at fed'l level, closest analogues involving access come from other exec-branch depts, often DOD. See examples below.

https://twitter.com/jonathanwpeters/status/1062358763267678208

Flynt v Rumsfeld (DC Cir 2004): Larry Flynt and Hustler sued DOD seeking relief against interference w/ the mag's exercise of a claimed First Amend right of access to US troops in combat operations, and claiming that DOD delay in granting such access infringed that right.

Some thoughts on the legal implications of pulling Acosta's hard pass ... Public-affairs reporting is facilitated by complex system of access rights & norms. Recurring question is whether a journo has a 1st Amend right of access to info or places closed to the public but open generally to press — and some lower courts have said yes.