calls momentarily here on c-span2. the presiding officer: the senate will come to order. the clerk will read a communication to the senate. the clerk: washington, d.c., october 13, 2016. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable dean heller, a senator from the state of nevada, to perform the duties of the chair. signed: orrin g. hatch, president pro tempore. the presiding officer: under the previous order, the senate stands adjourned until 11:00 a.m. on monday, until 11:00 a.m. on monday, >> host: the u.s. senate has

pro forma sessions twice until mid-november. lame duck items include funding the government past december 9 also aid to flint, michigan, and defense department programs. live coverage of the senate on c-span2 and the house over to november 14 on c-span. we get back to comments and calls about donald trump in a speech that just wrapped up in west palm beach, florida. 202-748-8921 for republicans or democrats it's 202-748-8920 and all others 202-748-8922. we were on with -- go ahead and continue. >> caller: the thing that i wanted to explain was that after donald trump from today i even feel more motivated to get out and vote. it's not even about donald trump anymore. it's about the people. we are tired of the corrupt system the we're tired of being raked through the coals the

global interests and global ideas that don't really represent us. donald trump, he didn't have to do this. he could've just stayed and just sit idle by and just watch the world explode in hi a big mansin but he decided come to them either people. hillary clinton needs the power, the pain and the money post to any speech he addressed some of those themes of corruption and trade but using the speech most specifically to address the allegations of sexual harassment come in particular those of the new times in an article published in yesterday. is what donald trump had to say. >> and so now we address the slander and libel that was just last night thrown at me by the clinton machine and the "new york times" and other media outlets, as part of a concerted, coordinated and vicious attack.

this is not coincidence that these attacks, at the exact same moment, and altogether at the same time, as wikileaks releases documents exposing the massive international corruption of the clinton machine, including 2000 more e-mails just this morning. these vicious claims about me of inappropriate conduct with women are totally and absolutely false. and the clintons know it, and they know it very well. these claims are all fabricated. they are pure fiction and their outright lies.

these events never ever happened, and the people that sent them meekly fully understand the you take a look at these people, you study these people and you will understand also. that claims are preposterous and ludicrous and defied truth, common sense and logic. we already have substantial evidence to dispute these lies, and it will be made public in an appropriate way and that an appropriate time, very soon. host the donald trump undressing the sexual harassment allegations at a speech in west palm beach, florida, getting your reaction and c-span2. we go to dan and nevada on the independent's line. go ahead. >> caller: good afternoon. trump is right.

i think the elites in washington and the media must think we are all, the american people are a bunch of buffoons. because all of the last minute, they bring all these people out of the woodwork and fabricate all these lies like we're supposed to believe all this crap. it's just another ploy, more crap, that the elites, this country don't want those people to run our own country. a think we're stupid they don't think we are smart enough, and i've had enough of that. so i'm going for donald trump i'm an independent. i used to be a democrat but i used to be a republican. now i'm an independent and i'm voting for trout. thank you and have a good time. >> host: john, hello. >> caller: thank you for giving us this format. i think donald, i'm a republican and also mexican-american here in california. >> host: right. >> caller: i love the way of donald trump defended himself.

i just want to know what hillary has done, has not told the american people that she has cancer as reported in a national publication about three weeks ago. they outlined her illness and diagnosis, which i'm glad trump hasn't brought up. >> host: what national publication was that? >> caller: the globe and i believe it was in the "national enquirer." sometimes they are dead on in what they report. and hillary has to come clean on her medical condition to the american people. >> host: fletcher from our democratic line. polls oklahoma good afternoon. >> caller: yes good afternoon. i thank you very much for getting my calls. i am very tired of the outburst of donald trump.

i do not like him whatsoever you can't do not like his politician whatsoever. keys to getting onto the subject of what we need in this world. he only talks about himself. and then on top of that the sexual harassment and everything else, i believe that. truly in my heart i believe that he did stuff way before bill clinton. bill clinton is not running for president. hillary years. and i think what's going on here, and he's blaming everyone, he's blaming the "new york times." he's blaming cnn. he's blaming fox news. that's all he does is he puts everybody down host to the trump campaign earlier caught up the "new york times" to retract the

story and the times a short while ago issuing a statement saying they would not do that. at the same come donald trump is making the speech this afternoon, hillary clinton was making a speech in new hampshire and some folks are watching it online at c-span.org. some reaction to that. marilynne tweets about that. michelle obama speech saying michelle is speaking the truth about most women feel. and just a short take on what the speech was about. this is the "washington examiner." first lady michelle obama said today she and millions of other women have been upset by allegations that donald trump growth and sexual harassed women, and said the country needs to reject trump quote a candidate for president of the united states has brighter of sexual assaulting women said obama in manchester, new hampshire, and quote i have to tell you that i can't stop thinking about this. it has shaken me to michael in a way i couldn't have predicted. that's from the "washington examiner." read more online. in fact, that the speech is

online at c-span.org which was carried live at c-span.org. south carolina, thanks for waiting. >> caller: thank you for taking my call. i've been a democrat most of my life, but the way the country is headed in the past eight years or seven years has just been wrong. and the thing that bothers me about the lady accusing him of groping her on a commercial flight, i remember 35 years ago in atlanta our plane had to wait on donald trump to take off. that just, none of the stuff actually even makes any sense to me why she would say that. i've never heard of him using a commercial plane. >> host: tell us about the incident why did you have to wait for donald trump? waiting for this point of waiting for him to get on board transferred no, no, no. his plane was taken off before

our state we were waiting to osha estimates that there were about three planes in line in front of him. at the way we were sitting you could see his plane right in front of us. post i appreciate you calling. here's randall in north carolina on our republican line. go ahead. >> caller: we are flooded down here but anyway, just want to touch on a think with donald trump. i can tell you being a person not too far from his age that probably a lot of the stuff that's going out is being manufactured by the hillary campaign. and i'm not so much worried about what the man said. i worry about, i'm concerned about the man's intellect. i truly believe he would be the person who could turn this country back around.

i truly believe he has the knowledge. i don't care that much about his personal life. if you go back to most people's personal life you'll find a lot of skeletons in the closet. there's been a lot of things said in both rooms, locker rooms, sporting events. there's been a lot of people touched inappropriate all these areas and this lady just called them, might even be one of them. i can tell you things happened years ago and if you look at the way now, it's the movement to try to discover his campaign. and the man is trying as hard as he can. he doesn't have to do this. he has the money to live the rest of his life and his family, and he can help this country, people would not be so pessimistic about him and get on board and help them in stand behind him, and all these republicans who have ran, they have not been anything force.

paul ryan, he should resign immediately. because he hasn't done anything to help out. so we've got a problem in the republican party and hope it gets straightened out soon host the appreciate your call. paul ryan revoking his endorsement of donald trump. sherry is in shreveport, louisiana, on the other line. go ahead. >> caller: yes. i was a hillary supporter of until a couple days ago my husband and i have thought about it. he was a donald trump supporter. i was a hillary supporter, but i've noticed recently she's more of out -- when donald trump is more worried about winning a race. he's more for the people, and he'll related has just reminded of a schoolyard bully, pickle and all anytime dollars as anything back to her, she wants to cry.

that's what he does to women. and the sex tape's they said, 30 years ago. i'm more worried about today, tomorrow, next year, the future for our children to i'm not worried about what he supposedly had done 30 years ago. like i said i was a big hillary supporter. >> host: and you just recently, you just resource which over. her husband supports donald trump and just come over to sporting donald trump just recently, correct? >> caller: yes. my husband and i have thought about hillary and donald trump ever since this debate. i had just recently joined the deplorable. i am for america, for the future of my grandchildren and our children. he's more worried about what he can do for our country to where she's more worried about what

she can do for a certain race. it's not about race. it's about us, the people, the americans. >> host: a big chunk of the speech was used to address the allegation of sexual harassment by donald trump, delegations by the "new york times" and other media organizations. nathan tweets at c-span by the way, donald trump is crying because the women he bragged about assaulting our coming out of the woodwork. we mentioned a short while ago the trump campaign issuing a statement calling on the "new york times" to retract that story which was published last night. the "new york times" legal officials responding to the campaign saying in part in a letter he asked that we removed from our website and issue a full and immediate retraction and apology. we decline to do so. continuing to say nothing in our article has had the slightest effect on the reputation that mr. trump through his own words

and actions has already created for him so. part of the statement from the "new york times" this afternoon. a couple more calls. texas, democrat's line. welcome. >> caller: thank you for getting me on. i wanted to take that i'm a registered democrat but i've been a registered democrat my entire life, but i'm going to vote for donald trump. i may even change my registration one of these days. the republican because i just can't see any of the gains made by republicans and democrats for this country for years and years and years are going to be here for our future if we don't elect donald trump. because the clintons and their corruption and lies are just going to destroy the country as we know it. we need to maintain our sovereignty and become a great nation again. thank you. >> host: appreciative that. before we wrap up obligation of some of the latest online ads that come up from both the

clinton and the trump campaign. here's a look. >> donald trump reeling from criticism by his own party's leadership. >> it is so nice that the shackles have been taken off and i cannot fight for america the way i want to spend the i have never been so ashamed of this country. >> donald trump appears to be in total meltdown. >> the shackles are off and now i can really do what i want. are you going to be more outspoken? >> i don't think i'm the outspoken. i was so surprised to see him sign on with the devil. >> he threatened to jail discipline. that is something i think is a new low in american democracy. >> are you going to target speeders am not sure i believe it. >> trump tower and house speaker paul ryan. >> i would want to be in a foxhole with a lot of these people. spin you attacked mccain today as well spent give me a break.

this is locker room talk. >> john mccain it was probably the dirtiest mouth in a la senate. >> i don't know what good it does to trash people. >> this morning it's not. >> donald trump is now out of control in the way that even we have not seen. this is a nuclear bomb. we are watching it. >> i'll compare my iq with anybody, okay? [talking over each other] >> mr. trump, we're going to move on. please be you didn't delete them? >> what do you think will happen if aleppo falls? >> i think about the is a disaster.

how stupid is our country? >> there are some countries in the military does that. psychological warfare. >> i can't think of any. [talking over each other] >> we have to move on. secretary clinton speed we want to give the audience a chance. >> let alone after getting a subpoena from the united states -- >> you can respond to we have to move on. >> mr. trump, mr. trump, i want to -- >> just one thing. spent everything is broken about it. >> please allow her to respond. >> it hasn't been finished at all. >> one on three. >> by so many measures our country is strong and more prosperous than it was eight years ago. we know the progress we've made. despite the forces of oppositi

opposition, despite the forces of discrimination, despite the politics of backlash. that doesn't stop with my presidency. we are just getting started. that's why i'm still fired up. >> are you fired up the? >> that's what i am still ready to go. if i hear anybody saying their vote does not matter, then it doesn't matter who we elect. read up on your history. it matters. we've got to get people to vote. in fact, if you want to give michelle and me a good send off, get people registered to vote. if you care about our legacy, realize everything we stand for is at stake on the progress we've made is at stake in this election. my name may not be on the ballot but our progress is on the ballot. tolerance is on the ballot. democracy is on the ballot. justice is on the ballot.

good schools are on the ballot. ending mass incarceration, that's on the ballot right now. and there is one candidate who will advance of those things out and there's another candidate who's defining principle, the central theme of his candidacy is opposition to all that we have done. there's no such thing as a vote that doesn't matter. it all matters. and after we've achieved historic turnout in 2008 and 2012, i will consider it a personal insult, insult to my legacy if this community lets down its guard and fail to activate itself in this election. do you want to give you a good send off? go vote.

>> he extracts the most from people because people want to measure up to his expectations. he finds the right person for the right job. qualified person for the job and he puts them in the position in the future tremendous amount of responsibility. he doesn't micromanage. >> he's a mentor to so many and he is kind ever think of something that doesn't necessary to get out of there as much as it should. >> flavor of some of the online ads, 25 days till election day. let's get one more call, reaction to the donald trump rally in west palm beach, florida.

this is chris in tuscaloosa, alabama, republican line. >> caller: thank you for taking my call. out of all the affairs that clinton's, bill had, hillary had to know about them. there's no way that she could see that she didn't know about the she would have to be an idiot. i believe that the clintons have paid these women off to come against trump. i do not believe that at all. i'm hoping that people will look at this last president we got to make history, but the first black president without looking at his qualifications. i hope we do not make it with this putting a woman in president without looking at her obligation. >> host: at this point between the two, between donald trump and hillary clinton, chris, who is most qualified, in your opinion transferred in my

opinion the donald trump. post a appreciate your call this afternoon and all your comments. is what religion we will show you the entire donald trump rally later in our program schedule. we talked about the michelle obama speech in manchester, new hampshire. you can find that at c-span.org. hoping to have that later as well. a lot of her campaign coverage is available at c-span.org. up next we will talk about the issue of what the white house reported would be like under a president drove over a pressured hillary clinton a national press club posted white house reporters immediately experts recently to talk about campaign 2016 and the first amendment. >> hi, everyone. welcome to the nashville clipper my name is rachel oswald giunta vice chair of the national press club of journalism institute freedom of the press committee.

it's the committee is organized tonight's discussion which i think is going to be very consequential. the idea for tonight's event came about listening to a lot of the campaign rhetoric this presidential season. it's no news to anybody that both republican and democratic candidates have not been awesome on issues of press freedoms, specific issues of access, issues of transparency. hillary clinton issue with her private e-mail server as well as information disclosure during her tenure at the state department, as well as giving interviews to the media have not been great. they have been subpar. donald trump well now took out a blacklist for a number of press organizations whose reporting he did not like. he has i think it created an environment of hostility among his supporters towards the media who he likes to blame for most of his problems in the election

cycle. but it has been his comments about what he would do to the press organizations he does like if he becomes president. specifically how he would change libel laws there really piqued my interest and interest of our panelists because we didn't want to explore what could happen if a future u.s. president is elected who -- reference and protections in the prosecution but how sacrosanct are they if the supreme court makeup is changed and what can be chipped away by practice in terms of our press freedom rides beside like to turn it over now to our moderator chuck tobin he will lay out the format o of the evet and introduced our distinguished panel. thank you. >> thank you. thank you, rachel. thank you to the national press club journalism institute are hosting this event. thanks to the folks who are here in the audience and 52 the c-span audience watching this

from home. the national press club journalism institute is committed to promoting free press worldwide, providing professional development and training services to the journalism community and scholarships to aspiring journalists so we thank them for the work and other service. as the folks in august and we're coming to you live from historic national press club. the perfect setting really for the topic of our discussion tonight which is can a president really rewrite the first amendment? because after all before donald trump famously told us all that is going to utter the p. word, publicly he uttered the l. word, libel on television broadcast. we will look at in a couple of moments. that caught the attention of the people on this panel and the people in our audience and hopefully those of you at home. so we will examine exactly what

for both parties standpoint, it's a bipartisan issue, what impact of who's in the white house can have on the public's right of access to information. as rachel mentioned my name is chuck tobin, i'm a partner in a law firm to represent journalists in washington, d.c. and around the country. joining me on the panel to give us a variety of different perspectives starting on my far left is kenneth jost, the author of the supreme court yearbook which is published by the congressional orderly press and the authors of popular blog. he graduated from harvard college and the george washington, i'm sorry, the georgetown university, big difference, georgetown university, georgetown university law center where he served as an adjunct professor and he's a contributing writer for many publications and often appears on broadcast commentary as well.

seated next to me is katie townsend, litigation director for the reporters committee for freedom of the press, a wonderful nonprofit here in washington, d.c. that is dedicated to pursuing press freedom issues. she is a prolific brief filer and courtroom arguer. she's especially busy these days soon to govern under the freedom of information act. i the privilege of watching her deliver an outstanding argument in the d.c. circuit that actually won. it's a case that stands now for the proposition that when a government employee puts their government e-mail on a private server, the foia law follows them to the server. [inaudible] >> but we are going to talk about a government employee and it may have ramifications. seated to my right is anita kumar, a journal so comes the white house for mcclatchy newspapers. she brings you information every

day about the white house and has lately been busy covering the hillary clinton campaign, chairing her companies coverage of secretary clinton. in addition to her work as a white house reporter, previously she worked at the "washington post." before that the saint petersburg times, now the tampa bay times covering government at every level, and she's a proud graduate of the university of virginia. and find my good friend on their end is adam liptak no to a lot of people in this room and in this town as the united state supreme court reporter for the "new york times." the rights sidebar column on legal developments. ..

he has taught courses on the supreme court and the first amendment and several law schools including yale and the university of chicago. thank you to our panelists for joining us. the setting for this, the tipoff or jumping point is donald trump 's comments made february and march in which he expressed frustration about journalism and journalists and he made certain suggestions that, again, caught the attention of a lot of people in this panel and around the country. i thought we might start by showing the clip that kind of launched us into this area, into this discussion. >> you talked about being unhappy with "the new york times" and washington post and you said we should open libel laws. you would have to prove that they published something that

you knew was false or how would you change that? >> "the new york times" and the washington post, the new york times has written stories about me that are so false and i think they know they are false but they are so false and so defamatory and everything, they're so libalist. they are nonexistent. it's unfair. if somebody writes falsie about a person, you should be able to sue. >> you can sue them tomorrow. >> you can't win. the laws are set up so you can't win. now, if i get in i'm going make the laws fair. if somebody writes a terrible defamatory story about me or horrible story about me and knowing the facts and putting in the wrong facts, i should be able to sue and get damages and i'm going to have those laws changed and when i say that, i

make it harder on myself because people are going to say let's go after them even more. the laws are very unfair and in a certain way it makes the newspapers and the media dishonest the way they are now. >> so that was donald trump, the republican candidate's interview with howie. he said i'm going make those laws changed if i am president. let me start off by asking, ken, if donald trump is elected president, he would be the head of one branch of government, the executive branch. does the executive branch control the flow and the creation of libel laws in the state? >> thank you, for the question and thank you for inviting me. chuck has spoken to my law school class several times so i guess either you're returning the favor or something me to return the favor. >> retaliation. [laughter]

>> in any event, the question goes back to high school civic's class. most of us will remember that the government of the united states has three branches, congress is the one mentioned in article one, the president is mentioned in article 2, the president entrusted with the executive power, not further enumerated and the judicial power is in the supreme court of the united states and such inferior courts as congress can create. so when -- when donald trump uses the phrase i'm going to open up the libel laws, i guess he's behaving as a candidate would, using first-person singular. the governing libel law in the

united states was -- stimes from a landmark decision from the supreme court of the united states before adam was covering for the times, before i was covering for anybody, although i was in high school and that's a case of that many, if most people, may recognize by name, new york times versus sullivan. i must say, i hadn't heard mr. trump express in exactly those terms, but if he -- if i heard him correctly, he said that you ought to be able to sue when it's so false and defamatory and they know that it's defamatory, well, that sounds to me like new york times versus sullivan and so i'm not quite sure how he proposes to change the law in order to open up the law. in any event, chuck asked me to do a little bit of historical

sketch so let's go back 200 -- gee, almost 300 years ago to the famous john peter case. a german immigrant that printed a paper called the new york weekly journal and in that journal some writer, i'm not sure if we know the writer of the story, in any event, the writer accused the colonial governor of various acts of corruption and the colonial government charged the printer with libel, that would be like, you know, today like charging your it staff with libel for whatever is published in your news organization. in any event, at that time libel law as it existed in common law, in england was very favorable to plaintiffs.

the presumption was that you had good character so if somebody published something defamatory about you, you were presumed liable. and that was what the judge gave to the jury and the zinger jury spent ten minutes finding him not guilty. that's a landmark in free-press law in the united states. unfortunately when the united states became a republic, the first amendment took up -- well, the first amendment, of course, says congress shall make no law a bridging freedom of speech or of the press. i guess today we would say or of the media, the first amendment sounded good and it was -- it was only eight -- seven years after ratification that the federalist president john adams

and his federalist allies in congress passed the law called the sedition act of 1798 which drove a truck through the first amendment. it made it a crime to write, print, utter or publish or cause to be any malicious writing against government of the united states or either house of congress or the president with intent to defame or bring either into contempt. that doesn't sound like free speech and several people including editors including a sitting member of congress were thrown in jail under that law. but the antifederalist had the last laugh because jefferson won the 1800 election and congress, the jeffersonian congress repealed the law. >> it's interesting, donald trump has precedented of john adams to fall back on if he says

he wants to open up libel laws? >> that's exactly right. let's fast-forward new york times versus new york sullivan. this case does not involve a story or editorial written by "the new york times", it involves addvertorial, defending martin luther king who was in jail and "the new york times" published it and it had minor errors about the montgomery police department, which the commissioner construed as personally defaming him and he sued and he won in alabama courts and the case reached -- and he got a pretty big verdict for the time. i think it was six figures, not seven figures. in any event, it reached the supreme court and the supreme court took it and said, we have never had an occasion to

consider the constitutionality of libel laws and now that we have that chance -- justice brennan wrote an opinion, in my opinion, best decision ever. look, false speech, that's constitutionally producted because otherwise you would have a chilling effect, okay, defamatory speech. you can be critical of the government. that's protected and when i teach this class i draw on the black board one circle and the other circle, when the two circles intersect it's still constitutionally protected unless, unless defamatory statement was published knowing it was false or with reckless disregard as to its truth or falsity. that is the test called that brennan labeled actual malice.

that's the misleading term because it has nothing to do with ill-will but it was adopted for suits by public firpción and that test "the new york times" was to cover low-ranking officials, candidates for public office. public figures including, for instance, football coach at a -- at a big football coach, a retired general who led a demonstration at the university of mississippi against desegregation. chief executive of mobile oil. it doesn't include for instance prominent social light in a high-profile divorce case. somewhere between public figure and private figure, the protection for a liable

defendant is weakened. donald trump ever since he's been, you know, totally public would be -- >> donald trump would be a public figure clearly, but you make it sound like it would be impossible for a public figure to ever win a defamation lawsuit, is it? >> and it does use the phrase that the malice is a substantial obstacle that few plaintiffs can overcome but it can be overcomed. to prove malice, intentionally or recklessly publishing a false defamatory statement, you can show, for instance, there's one -- there's one leading case where the reporter had sitting on his desk a tape that would show what he was about to write was false and the editor said, the editor said that he was going to publish it regardless

and so the actual malice test was overcome in that case, but it is hard to overcome that test and -- and in brennan's estimation it was intended to be. >> all right, so donald trump says he's being maligned and very offended by this, he has used the words that if a journalist knowingly tells falsehood can point it out. it sounds like he's talking about malice but sounds like hombridge issue for him than falsehood. >> indeed, it does not. offensiveness is a criteria in -- in privacy lawsuits. if you publish something, an embarrassing fact about someone,

private embarrassing fact that's offensive to the mythical reasonable person, yes, that -- that fits, but in terms of does offensiveness trump the first amendment? sorry. [laughter] >> that was unintentional. it does not. the most recent iteration of that is from the roberts' court in snyder versus phelps where the westboro baptist people were demonstrated at the funeral of a fallen member and the demonstration was very offensive, but the supreme court said, i'm sorry to the family, i'm sorry that this was offensive but that's what the first amendment is all about. the notion that trump's criteria

purposely negative and horrible and false articles, the horribleness of the article would have no bearing on a liable suit. >> in fact, there's an argument made that in order to get people's attention and get them thinking sometimes you have to offend, sometimes it's the job of journalists to push the buttons of public officials in order to provoik discussion and in particularly in terms of opinion so looking at the snyder versus phelps decision which offensiveness is not grounds enough to bring lawsuit, offensive speech is protected. let me pivot over to adam and ask, that decision came out of the roberts' court. chief justice for 10 or 11 years now.

how strong has this court been for these issues? >> quite strong. but in cases that involve core political speech and that's what we are talking about and that's what the first amendment is all about. the first amendment tries to guaranty that the government will not censor speech that people need to know in order to be active citizens in a democracy. on that score, i don't think there should be particular reason to be afraid of the roberts' court in this regard that somehow they're going to cut back on new york times again versus sullivan. that's generally what the courts have held, not every beat cops sets policy so you could see argument going the other way. i raise it only to say there's no interest on the current court in cutting back on new york

times against sullivan. the only judge that had problems with it, justice scalia died and any chance that the current members of the court might want to do something about sullivan, even though sullivan is a problematic decision. it's in the fabric of the country now and no one wants to cut back on it, but it arose out of particular circumstances. ken was saying the northern press was being sued by lawless southern officials who we wanted to make sure that the press didn't cover the civil rights movement and we wanted to drive the northern press out of the south where the nonviolent movement needed us like oxygen to show what was happening. in that setting, the court does the fairly radical thing of constitutionalizing the state law courts. moreover because brennan couldn't get a majority for what he wanted to do or the correct first amendment answer, which is to forbid lawsuits from public

officials, period, because a to rum of liable, they settled on something that's very hard to find in the first amendment. the first amendment compels a particular false standard of knowing or reckless, that -- i could understand that scalia didn't love that interpretation of the first amendment. but if trump wanted -- if trump were elected and wanted to do something about times against sullivan, the only thing that he could do really is start appointing people to the supreme court who might vote the way he wants them to vote. >> let me ask you, there are seat changes at times in the supreme court, right? we just had bowers and lawrence versus texas and the right to marry cases. in 1986 the supreme court held that the state could criminalize gay sex and the supreme court reversed itself.

>> it is true that cases are overruled, it's correct. >> and i guess what you're saying that it could happen but not likely to happen with this court? >> the current court, i don't see at all. a court to trump nominees, perhaps. but this is one of those principles that's so settled and engrained i don't think the court is going to give the press any further protection but nor do i think it's going to cut back what for two generations has been thought to be core protection. >> can i just note? i believe that justice burger and white are over a 50-year period who have called for reconsidering times versus sullivan plus justice scalia as adam pointed out. there's no one on the current court who wants to take a bite out of it.

>> we certainly couldn't expect the courts to extend the rights any further. >> katie may view sr. a view on this, if i were still a press lawyer, i i would have try today keep a prez case out. >> it's an interesting point because we often have or every few years we have a reporters' privilege case bubble up with a judith miller or james gets threatened with jailing or severe contempt fines. how is the supreme court receptive to look at that issue? >> are they receptive to reporters' cases, thank god, no. [laughter] >> because i don't know that we would get a single vote for a constitutional reporters' privilege. although we got four and a half. i'm reliably told that when judy's case when to the court there was not a single vote to take the case and not that i

wanted to see my colleague in jail but for the good of the reporter's privilege that would have been a good outcome. >> this is where i put a plug, write your congressman. >> yeah, i think he wasn't a huge fan of the press but the reason he apported because he thought it had an original meaning and it just doesn't fit well with the original meaning of the constitution to have these, you know, false standards emanating out of the first amendment. i think it's possible you could have made the argument to scalia which public officials as such should not be able to sue because what the first amendment ought to protect is all criticism of the government.

but to find-tune it in the way the malice rule fine-tunes it it's a little hard. >> what about offensiveness in this case, we have snyder versus phelps. this notion that criticizing people in power shouldn't be actionable. >> not only people in power but the powerless. grieving father trying to bury his son defending his country has to put up protests. that gives you a sense that this is not such a bad first amendment. justice alito thought was in the nature of fighting words and i -- i think it was bob barnes was supposed to interview the grieving father and said

something like god didn't give the justices and the majority the sense of a dog. he didn't understand the human values. >> hurtful for him. what about the other justices, if you wouldn't mind talking about justice briar and thomas. >> justice thomas is in some ways pretty good on the first amendment particularly when it's powerful people or corporations. less when it's students or people in prison or people in -- in unions. justice briar is maybe the worst first amendment judge on the court from the perspective of the press. most -- most people think that united states first amendment law is categorical, if you're within the protected speech, you get complete protection.

justice breyer takes a more european view that he's going to balance interests at stake and often come out in the right side of the balance as he did in case of audio recordings and case about lying about having received medals. he will do that to make sure balancing. >> that makes it harder on the lower courts, for these folks to have rights vindicated? >> that's right. >> what about -- you mentioned earlier if we did get a president trump in office the appointment power of the president, we have one vacancy right now. we have potentially some more coming down the pipe. is that a concern from people? >> we have three justices who are approaching or past 80.

ruth ginsburg. >> justice ginsburg, you had a wonderful interview with her recently as justice begin -- ginsburg showed any sign? >> to the contrary. she's sharp. she's going to do it as long as she's able to and she's chomping at the bid that there's a democratic point' because that makes her a senior liberal justice in a five-member liberal majority and for the first time she will get start assigning decisions. that prospect seems to brighten her day. [laughter] >> i don't think she's going anywhere unless there's health problems. >> she's determined. you're out on the campaign trail with the candidates, they're talking about their particular

preferences with either people or profiles. donald trump mentioned silicon valley billionaire who bankroll ed lawsuit. is it resinating with voters? do you hear people talking about that issue? >> not really. the part about the media, it bothers us, we complain about it all of the time, but not really. you know, when we write stories, i'm sure you get the same people, readers are always -- if you write about yourself or the media, people are always complaining that it's all about us and why are we writing about that. i don't know. i definitely get voters talking about the supreme court and not the med apart just wonder who they're going to appoint, what will that be like. i just talked to a younger voter today who said i'm trying to convince my friends to vote, he was voting for hillary clinton to vote thinking about the next 30 years and he specifically mentioned the supreme court.

we can't just look at the next four years or eight years, we need to look at the 30 years. the supreme court is an issue that they're thinking about. >> adam, let's make this a little bipartisan, let's look at the clinton side of things at least from a propress standpoint. is having her as president automatic ticket to propress justices is that going to be a priority for her? >> i don't know that this brakes down along political lines. there's lots and lots of conservatives who take view of first amendment. it may not be the first amendment that liberals recognize. but citizens united was a classical first amendment decision. i don't know that this is a partisan issue in that sense. >> and justice brennan was obviously a republican appointee, considered by eisenhower to be one of his two biggest mistakes was putting him in office and so maybe there's something historically to that.

>> brennan was not an example of ideological appointment but rather to get the catholic vote. we are in a phase now for the first time in american history strikes you surprising because it seems so normal in polarized country that in a closely divided court, every conservative justice was appointed by a republican president, every liberal justice by democratic president. that's not the way it used to be. other criteria use to happen, gerald ford when he appointed justice stevenson, find me the best lawyer in america. other people put cronies on the court. ideology was not always the leading factor. it used to be a jewish seat. now we live in an era where the court reflects polarization of the nation. >> let me ask you this, trump recently threatened "the new york times". would you be worried about the leak of the tax records that

your colleagues reported on from his 19995 tax returns, would you be worried about a case like that bubbling its way up through the court system? >> no. no, we are right. he's wrong. [laughter] you're allowed to publish news-worthy information that's accurate in order to inform the electorate during presidential campaign. that's not a closed question. >> all right. let me ask, if the courts won't bend to the president's will, you know, would you be worried nonetheless about a president? let's start with president trump in the white house from a freedom of the press standpoint. >> well, we would be worried with either of them. i know a lot of attention has been paid to trump but i think we think that whoever wins the election that access will be less than currently is. i said this to you the other day, the funny thing that is

happened that president obama is not looking so bad anymore. we've been complaining about it for years on press access and i think that the white house press core and those on the campaign think that either candidate will be worse for press access. will we be worried? i think we would be worried not necessarily about legal cases, i think we would be worried about everyday access to the white house, what information we would get. you can look at both candidates and see, you know, look at how they're treating with press. >> start with trump and move over to clinton. >> trump you heard about a little bit. he is pretty vocal as we heard some of what he said. you know, those that cover him and i've been covering obviously president obama and now hillary clinton, those that cover him, i mean, he -- i think the way that i would characterize is he's out there talking about what he doesn't like, he's complaining

about it and we are just not -- sure, we hear from people when they don't like stories, of course, we all do that but this is sort of a -- part of campaign now. campaign rhetoric all day now, it's about the media and when i get into the white house i'm going to change things. i think we are worried about that. some of the things that have happened, i mean, you know, i will use as an example from sunday which is he has a traveling press core, you know, most of the major media outlets, media, they follow him around, both candidates around. on sunday which was the second presidential debate, we were all in st. louis and a note came across from the trump press corp. that donald trump left him behind and they didn't even know it. the candidate isn't traveling on the same plane with the press which is why that can happen and, you know, we know that but there's not even the information there. he's not providing information

that candidates have provided before. he's providing really little information about fundraising beyond what he is legally required to report. scheduling -- there's no information coming out. >> but he's being managed for political reasons in some respects the management has become tighter and has more influence over him and every once in a while he gets off the leash. what about a president trump, what would that look like? >> i don't really know. i don't think we really know because it's hard to tell what is rhetoric and what he will really follow through on. i think that he would actually have press conferences because i think he would not be able to resist doing that. i think he would lash out at the media but he would still probably have more than president clinton which is a funny thing to say. we are not really sure. there's lots of things that can happen that aren't, you know, lawsuits and legal issues.

i mean, how would his administration handle foya. it's not great right now. could they slow it down some more? it's pretty slow. >> katie is going to tell us about that. >> the reporters that come to the white house, can he restrict the office? it's unclear to us. can he say i don't want to have a set of reporters follow me, when president obama leaves the white house, we are leaving with them. so when president obama goes to his daughter's school, we are there, when he goes out to dinner with his wife, we are there. can he say, i don't want to do that anymore, sure, he probably could. sure, we are worried about -- we are worried about those things on a daily basis, those small things every single day. >> what about candidate clinton on the campaign trail, how has her access been and -- >> we don't hear about it as

much because she's not vocal about it but i would say that, you know, hillary clinton famously hasn't really gotten along with the media since she was first lady. i mean, shee not talking about it every day but i do think that she's not -- we pushed for more access for flying on the same plane with her for a long time. to give you a perspective. for the last two cycles, '08 and 2012, both candidates allowed there to be a protective pool, which basically means reporters that are traveling with her or him, no matter what, so if something happens in -- and history is made, we are there to witness history. neither candidate has done that

yet and we are not going to. we are less than 30 days out. both of them did it -- all four, three, obama twice, did it before they came nominees. for hillary clinton we pushed for that to happen at least when she became the nominee. it still hasn't happened. to give you an idea of what we are talking about on september 11th of this year when she fell ill at the ceremony, not only did they not tell the media where they were going, they left the media, they left the media at the 9/11 ceremony. that's not supposed to happen. i don't think it would be a priority for her. she's giving out less information on lots of things than president obama did as a candidate and you can -- you can look. she's giving out some information on fundraisers but she's not giving out what he gave out. would she give less, you know, president obama i don't think he did in a very good form but he's

giving out visitor logs to see who has come to the white house in a very unfriendly way. you can't actually tell but at least there's some form out there. do i think hillary clinton would do that, no. do i know donald trump would not do that. he's giving out no information. i just think that we think there would be less information, there would be less news conferences and less interaction with the media. >> let me just throw this open to the panel, is that an inaccuracying trend that there's more control, less willingness to engage? >> can i just recall briefly, so i was writing about health care back when the first lady was head of the healthcare task force and i believe i'm remembering correctly that she successfully resisted having the open meeting act applied to the task force that she was convening with the industry and

consumer representatives and to say that hillary clinton would not make access a priority is in light of that episode -- [laughter] >> i was being kind and diplomatic. even if it wasn't trump or clinton, whoever the candidates would be, i think we would see less, more traditional press access. obama says all the time, they don't need it as much. you know, we complain about that all of the time and that's just sort of the answer, that's the world we live in now. we can get more information out in other ways. so no matter who wins, that will be the case. >> do they need you?

do they really need your interpretation if they can directly impact the public or directly get the information out? >> well, i think -- feel free to jump in on this one. i think people get information in lots of different ways. newsprint is going out but we still provide information in ways that people read or listen or watch on tv and also what they're calling journalism we don't call journalism. they can get out there and message, that's fine. but what we are doing is journalism. we are taking the information and filtering for you and explaining it for you. what they're talking about isn't journalism, putting out to people -- in this polarized world that you just talked about. it's basically right and left. they are taking information and saying what they want with it. >> there's no check and balance. >> obviously i'm going to say that we are still needed and know that we are still need and it's the question whether the

president thinks that. >> i do get a sense they read us closely. i don't cover the white house but the white house cares what "the new york times" says about the white house. >> does the supreme court says what "the new york times" says about it? >> on occasion. [laughter] >> good to know. i wanted to ask anita a question, obama has been criticized for being bad as -- for the press in leaked investigations, launching more leaked investigations than all the presidents combined. do we have a sense of what the candidates might be like on that metric? >> no, but i think that they would -- that's the worries that -- so a few years ago when people thought the obama administration were actually -- was actually going to go after reporters criminally for leaks and they were going to start an investigating and they kind of toned it down with eric holder when he was attorney general, i

think we thought that was the way it was going to be and they set back a little bit. definitely with a donald trump he was worried about that because just the way he has talked. i'm not sure about that with hillary clinton. and again, obviously maybe i was being diplomatic, that's actually going after reporters. that's a huge leap. >> let me pivot over the katie, let's just talk for a minute about the obama administration's record about going after journalists. there were a couple of famous incidents with the department of justice and subpoenas and the reporter's committee got active in working with then attorney general holder on that. >> then attorney general general holder led revisions in the guidelines, one of the cases most prominent is james rison but there were warrants and subpoenas to the associated press for phone records which

they were not aware of at the time, and there was also fox news' james rosen had his e-mail -- e-mail warrant basically under the historic communications' act for his e-mail. when they came to light which was after the fact many years after the fact in the case of rosen really alarmed the media. reporters' committee was one of the members of a news media dialogue group formed by the department of justice to at least on the department of justice side help reform some of the policy when it came to issuing subpoenas and warrants to journalists. now, the reforms are not perfect obviously buttic there were meaningful reforms, the guidelines now cover warrants, for example, they only covered subpoenas directly to the news media which is a meaningful reform.

but, you know, the devil, and i can talk with respect to foya as well. people say the devil is in the details, i think the devil is always in the implementation. foya, for example, is freedom of information act, statute, congressional mandate. its requirements are set forth by congress. they, of course, decided not to apply them to themselves and only executive branch and how mandates are carried out depends very heavily, i i would say on the administration, what the administration's priorities are and what the views on transparency are. even though it's a congressional mandate, it can certainly be shifted dependent upon to the president appoints as attorney general, that also goes for foia implementation. >> when i teach the freedom of information act i say this sounds really good and then you

list the 113 exemptions and the 13 exemptions turn out to be a road map for getting out of it. >> or look at the doj guidelines on how to respond and look at the memos and there's always more. there's the agency regulation. there's always more to foia than just what's in the statute. >> and, of course, the delay, the delay is just endemic because anyone can ask for a document under the freedom of information act, so there seriously is -- too many requests to process quickly but important ones are not prioritized. >> there are deadlines under foia? >> there is. >> that's the law. >> there are. they are routinely ignored. we would like to say there are deadlines under foia. this is extraordinarily slow. the situation became worse under the obama administration. the backlog and delay and -- and

assertions of exemptions under the obama administration actually increased even though famously on his first day in office president obama pledged to be the most transparent administration in history. >> let's pull back the holder memos. talk about that for a moment. the focus in the panel who is in the white house and controls access to information and there was a major shift at least on paper between two different administrations. >> yeah, so this is a great example of exactly how an administration can shape the way foia is implemented and impact the efficacy of the law. among other things very famously, put in place a policy that was in place for over two

decades, the department of justice and all federal agencies that essentially told agencies that if records were requested that were excluded from foia, not subject to one of exemptions but exclusion, meaning it was someone requesting information about an informant, for example, then the agency could respond but -- that there weren't any such records because there was assumption that the request meant records subject to foia. a lot of folks portrayed saying that you are giving right to lie. >> it was passed by -- executive move by the reagan mechanics in order to -- it had some sense to it, in order to prevent the mafia from sending foia requests to the government for i was that might lead to the status of disclosure of information about

investigations against them. fast-forward, i will share anecdote with you, in 2013, my firm litigated a case in which the surveillance of dr. martin luther king and the records related to that surveillance were an issue. it was for the memphis and the obama administration didn't tell us, they denied existences under the so-called exception c to foia. you usually talk about the b's. >> these are the exceptions. this demonstrates the manner in which foia can be undermined through advice which really controls and now really under the office of information policy or oip within the department of justice. they really are in charge of giving guidance to all agencies,

not just doj, component agencies but all agencies as to how foia would be implemented. it was in place for two and a half decades for 2011 is the pointed time when it came to light again when it was discussed, should we be applying the policy that we have been applying consistently since 1980's, is this good for transparency. ic -- i think you can look at the holder memo within days of president obama taking office which talked about a presumption of openness, presumption of transparency under foia and being again -- just going to be the most transparent administration in history. it didn't quite turn out that way. i will say that in the last foia reform bill which passed last year or actually earlier this year, the presumption of openness that was in the holder

memo had been codified. it happens with executive orderers and discussing implementation. it's not clear whether or not that's going to have impact. we will have to see how that plays out in the course through interpretation of that presumption, kind of -- it does demonstrate that there's a give and take and i think one thing that i wanted to say about sort of goes back to ken's point about the three branches of government. one of the reasons that foia reform bill, bipartisan foia reform bill got through congress was because there was a tension between the party in the white house and the party in congress and that tension isn't always there. so when you think about who the next president is going to be and how that might affect implementation but whether or not there's additional foia reform in congress, you should look at the entire electorate map.

not only who will be president but who will be in control of the house and who will be in control of the senate because to the extent we have seen historically, to the extent they're all controlled by the same party it's actually less likely that you're going to get aggressive calls from congress for more transparency from the executive branch. >> and no freedom of information act claimants. most of the cases go -- go in favor of the government agency resisting disclosure. >> that's true. and i would be interested in adam's thoughts on this, they haven't taken that many foia cases. it's not one of their favorite topic areas. a judge who had a lot of expertise in law was justice scalia and, of course, the current obama appointee who, i think, is floating out there

somewhere, judge merrick garland who sing floating some where knows quite a bit about foia. >> he has been pretty good on foia. >> i have appeared before him in foia cases and one of the case that is he was listed as one of his most important, in fact, a number of them were foia cases, i wonder adam, if you think that would change if he ended up being the -- >> you know, i'm not dying for them to take a lot of foia cases. they treat them as ordinary cases and they try to figure out what congress meant and they're not big picture cases. they turn on small interest issues. so they are no fun to cover but more importantly they're not going to change the law in any fundamental way. >> merrick garland isn't going to get that slot. >> that's another story. [laughter] >> i just -- here we are and the

countdown has begun. they were talking about it today. >> you see no chance of lame duck and the republicans say, maybe we will take a 63 moderate after al? >> i don't know, i guess i would take mitch mcconnell at his word and it sounds like it. it sure doesn't sound like it. [laughter] >> so katie, we talked about the doctrine and whoever is in the white house really can have emphasis on foia, let's talk about foia practice, so tell us, does -- has there been a trend, has it been a good trend? >> yes, there's been a trend, no, it has not been a good trend. i think this probably reflect a little bit about what anita was saying in a bipartisan way the trend is towards less transparency. so really every administration regardless of which party it is has been more secretive than the

last in terms of foia. part of that is an increase in the number of foia requests so when the media compliance about the obama administration's numbers, they like to say, well, we had an increase in foia requests, this is true, factually true. although the number of withholdings has increased in a way -- with withholdings, exemptions not explained by that alone. i think that if you take the obama administration's first day proclamation at face value and say this is what this administration intended. they intended for this to be the most transparent administration in history. you have to ask yourself, well, what went wrong and i think part of what might explain that is just simple inertia in bureaucracy. so foia is agency by agency.

it's a completely unfunded congressional mandate. meaning each agency -- a congress allocates no funds to foia. there's also a -- there needs to be leadership topped down from the agency that really views foia compliance and transparency in each agency as a real priority. so simply saying, we take foia really seriously as an administration and we want to be a transparency administration is not really enough. there needs to be real -- it's difficult. it's really difficult to counteract the delays and the backlog and to move to make those improvements. and so i think that if you -- that is not going to improve, right? it doesn't matter whether it's the president trump or president clinton. frankly it wouldn't matter if it was some other candidate who

believed so whole heartedly in transparency that really wanted to make it a priority. it would make the effort. i think anita is absolutely right. the transparency is not really going to be a priority for them. i think it's only going to get worse because it really has to be a top priority of an administration and the administration has to really put some effort into addressing the problems that are there. >> i mean, president obama and they love today -- loved to say this because it's the near of administration, they're the most transparency administration and you see at the state department which we are obviously paying attention to because of hillary clinton that the only way those emails got out or anything else is because people sued. >> right. >> that's the reality. >> and obviously takes money,

effort and lawyers. >> right. >> to bring foia litigation. how has the obama administration responded? have they responded differently than the obama administration when it comes to foia administration? you spend your day in the trenches in court. >> i don't think so. it does matter who not just who the president is but who the president appoints to be their attorney general, so for example, you know, a president trump might have a view on transparency. an attorney general christie might have a different view or a worse view and it's possible that he might specially if it's not a priority for the president might decide to have their own way about doing things. so it matters to who the appointees are. i don't think there's been a real shift how cases are handled by the department of justice, for example. i think that is one way that things could be improved.

i think that often times you get in litigation and how those cases are handled or how those cases are litigated where maybe you shouldn't take three rounds to tell the plaintiff that, yes, in fact, there are actually documents responsive to your request. i think that can help and reflect a better commitment to transparency. we haven't seen any difference. >> we see the same template through the bush administration and the obama administration just in terms of their play book, motions to dismiss practice and the regressiveness. talk about your case which was a fascinating exercise. >> right, so this is the case that was brought by a conservative, what they would call themselves a watchdog

group, competitive enterprise institute, they sued the office of science technology policy because they were attempt to go get emails, the director of that agency, that he had stored on his basically private, none -- none governmental server. the agency responded that the nongovernmental e-mail was outside the scope of foia because it wasn't the agency sort of e-mail server. we became involved in the case. sounds familiar, right? >> sounds familiar. >> we in a number of media organizations became concerned that a bad ruling in this case that was affirmed by the dc circuit. there was what i would say a court ruling approving the government's argument that the agency has no obligation to search for this. it is outside their control. it is not subject to foia.

the competitive enterprise institute appealed. parent post -- washington post filed a brief saying howdies as -- how disastrous it would be and the court made very clear that it doesn't really matter if those agency records are on a nongovernmental e-mail account, nongovernmental server, if they're in the agency director's desk drawer at home. they are still agency records and still subject to foia which is quite an important ruling. i do -- you know, do i think that's the kind of case where it's a very good example of should the department of justice be making those types of arguments sort of to begin with.

i think that we were very troubled actually not only by the district court ruling in this case but the arguments made by the government and by the fact that after that district court came out and the government began citing it in other cases for the proposition that we don't need to search e-mail accounts or servers or anything like that that are not -- not governmental servers. i think when you have a commitment to transparency or you say you have a commitment to transparency, i would think that those are not the types of arguments that you would want your lawyers under your administration to be making. >> in fact, i mentioned earlier i was watching katie do a marvelous job. you had interesting makeup of your panel in the dc circuit. >> we did. we had two senior judges and

accordingly because we two senior judges, the judge presided over the panel who was also rumored to be possible contender for the supreme court. >> a president clinton administration. >> and then we had judge edwards was one of the senior judges and judge sintell. they have done a very number of famous cases, foia cases. >> one who is considered on the left and one who is considered on the right. >> generally pretty protransparency, profoia. ..

walk away from the state department with all of his records. when the state department was sued under the freedom of information act, the state department said we don't have him. so why are you suing us? they said you could of course ask, do the state department could ask for the records back and the state department did n not. >> it's that one of the ones we're most proud of. it was the central issue actually how to interpret kissinger in light of the situation. that was the central issue. they distinguished it. not necessarily i would say very clearly.

i think the majority opinion was -- but that was really the central issue. >> for those of us who watched the judge is very carefully for predilections and ideas, i would say the judges concurring opinion which went in favor of gay disposition indicates was unhelpful because he said it leaves the door open to kissinger types of situations and the lower court should explore whether mr. hultgren seated the material over to a private server which was a distinction that was me. he still had control over his enough address and katie are sweet and. if you can go get them he's obligated to go get them and that's what the majority said. my other favorite moment was the judge, a rather that what type of character sang to the government lawyer council, thank

you just met yourself on the way back from that argument. i felt pretty good for katie in that argument. do we have any predictions or takes out a president trump versus a president clinton might be on for you, for example, or are we equally in trouble no matter what? >> i don't think probably the short answer is yes. i think in part because of what i said earlier which is i think they're sort of the way there's mission creep, their secrecy creates an executive branch agencies and it's hard to pull back from that. i think you're dealing with two candidates, obviously former secretary clinton was a government official. we have some indication as to how she handled the federal records. we have a record to look at. obviously, that's not the best indication. even setting aside, regardless

really of what the federal records act required to do at the time she was secretary of state, it shows a lack of focus or, just that it was not a priority for her to make sure she -- >> i think -- clearly, that was her e-mail set up was designed to be secret. that's why she did it. i don't, i think even the e-mails show that's why she did it. you can argue about the records act and what she should have done. the bureaucracy and the sloppiness. but the original intent back from the beginning why she set it up the way she did was because she did what people do see her personal information. >> and now look what happened. >> what do you think, there's a lot of litigation involved in

some of it. >> where we are, we moved to anything but actually to unseal some documents, until some deposition videos. we are not involved in any of the number of the foia cases against the state department that if our e-mail except in that more limited capacity. i think it fair to say in the same way hillary clinton has no real, there's no real loss for the media, i don't think there's any real love lost for for your interest energy. i think she probably hates her and work for you as much as she hates hearing the word e-mail. i don't have high hopes she's going to embrace transparency on day one of her administration. i also think with respect to donald trump, we don't have a record of public service. she's never been a government official before so we don't know exactly how he might treat for you. what we he doesn't seem to be very transparent it comes to things like is tax returns. he doesn't seem to be inclined

towards transparency. i don't think we know what it would look like. he hasn't spoken about for you from what we can do on the campaign trail. except to criticize his opponent. >> in regard to hypothetical trump presidency, let me recall an episode from the 1960s. the supreme court case that upheld the fairness doctrine was, i think the history shows, it was instigated or at least supported in part by the kennedy administration, a liberal democratic administration suing a radio station that broadcast john birch type material. that's one thing a president could do, a president with hostility toward the established press, institutional press,

might try to stimulate of private litigation against the "new york times," for instance, of others. i hope i'm not planting a suggestion in his mind. >> i don't think you need to plant one. donald trump is threatened or sued immediate dozens of times over. >> and presumably he would be happy to finance libel litigation and assembly that is offered to finance legal defense for anyone who roughed up and anti-trump protester. >> i think that's right. you raise some interesting questions. once i've wrestled with from a legal standpoint. anita, do you ever get exclusive interviews with politicians, candidates because either you got a particular outlet that their interest in or because you've established a rapport, you get the the to sit down with them? >> i would say sometimes we get information but i've wouldn't

say we get an interview. hillary clinton, well, famously it was like 200 days and should not get any press conferences but she did do, especially during the primaries she was very interested in doing local media. she didn't do a lot of national media at all but she went into the market, small markets in the primary states and interviews that were like three minutes or whatever. for example, one of the papers mcclatchy owned, the state and columbus after i got a short interview with a because the south carolina primary was one of the first. i think they all do stuff like that the president obama does all the time. he looks at the map and he says this is a battleground state or a state where he is a particular message and he will go in and do interviews. but mostly that's local. he's done a lot of local media. not a lot of national. >> some candidates, president bush will tend to favor an interview on fox, exclusive

access. president obama my favorite a different network. >> i would definitely say that. immunity is talked about what newspapers and tv stations to watches and reads. it is something with espn the other day, two days ago. not your traditional news outlet for the white house, but you know, he watches a lot of sports and he watches espn. >> if they can play favorites, could everybody at the table has experience with, can they disfavor a journalist? can they put you outside of the room if they don't like what you have to say? let me ask the lawyers. is that constitutional? is that acceptable? >> there stood a way to approach it but i think one way is to look at this dangers in the traditions in which an

individual is being put out of. so, for example, i think donald trump if he were to become president would realize very quickly that excluding one particular member of the press from a weekly press briefing is not quite as easy as it is to exclude a member of the press from one of your campaign event, the white house correspondents' association is the body, the body who selects who sits in the room and, in fact, where they sit. the tougher question i think on that is sort of hypothetically what if the word goes out to the press secretary and everyone else that this particular report never gets called on board this particular reporter never gets questions answered, never gets inquiries answered. that's a real tough, that's a much tougher question and that also is a question you have a lot of experience with. you represented the "baltimore sun" in a case that is one of the only cases to address that

type of retaliatory behavior. the fourth circuit decision didn't turn out the way we would've wanted it to turn out. unfortunately, i think it is, and in that case the fourth circuit affirmed the decision, holding that the "baltimore sun" reporters, even though the governor of the state issued a memorandum essentially saying don't talk to these reporters, to answer the questions. there was a wholesale ban on these reporters. they put a blacklist on these reporters. the fourth circuit affirmed basically said you don't have any special right of access to a member of the media. you have a right to have someone answer your question. essentially the fourth circuit pointed to competition among the news media. government officials always play favorites. they always want to give a story or go to a news outlet they think will be favorable. that was an associate with the default i think really clear

evidence of retaliation. that doesn't apply to you think we might get a closer question on issues like that, constitutionally, is when the reporter does have special right either because they have been credentialed or the received embed status in the military. something to get the kids in a special right. if it's revoked for reasons that are really nothing to do with whether they follow the rules but billy has to do through reporting thing of issue, a question as to whether not the constitution comes into play. same as under foia, a president from not up struck an agency did not respond to foia requests made by "washington post" reporters. those "washington post" reporters have the same rights to use foia as every other member of the public. when you get into the greater area of just the -- >> yeah, it's come we don't talk

about it that much and it's not for the reasons donald trump says that someone had the store and i'm not going to, i'm going to hurt this publication. but sure, it happens all the time. just because they give something to do in your times they're not giving it to someone else. it's mostly, it's an interesting dynamic because there's a lot of people in their who are covering the white house every single day but they are a small publication. there's a big discrepancy between bigger and smaller. and so sure, to the bigger outlets all get invited to things like background briefings would explain the president obama made a decision about, you name it, series you. there was a background briefing to al all the small organizatios can but all of a sudden they don't get invited because they are not big enough to they are covering it. did someone not get their e-mail return or the call returned. divinity called on everything? it happens all the time that i

don't think it's sinister. it's just it might be more helpful to answer this question today, or the "new york times" has more readers or mcclatchy has more readers than some smaller paper. they do it all time. the question is whether donald trump with it because i don't like that story adequate to keep them out of the room. i don't think they can be kicked out of the room but they can never have a question answered. >> t. alluded to a case "baltimore sun" versus ehrlich, litigated in the fourth circuit in the fourth circuit did uphold instead reporter should expect if they get favors they can be disfavored. the footnote is governor ehrlich got defeated for reelection shortly thereafter. universe was made whole. i want to take a few minutes, we have a few things left to see if there any questions in the audience. from the panel. we've got some people here. >> this is for any do. -- i need a.

-- anita. mike doyle, reporter with mcclatchy newspapers spent it's not a plant, i promise. >> is it true -- could you speak to the degree to which a president sets the tone because the white house press corps is only a very small part of the kind of executive branch? there are secretaries with their press secretaries and career step. so to what degree would a president trump's hostility towards the press or president clinton's more subtle hostility towards the press filter down into the other executive agencies or the independent? >> i think they matter less than i would've thought. we have this idea that josh earnest, the press secretary, and the staff can we ask them about all these agencies all the time and we get this idea they can get, josh artist can get them to call us back or give us information or make use of agencies answer questions. maybe some of that happens

behind the scenes but in that i feel like they let each agency do their thing. i do think a lot, it's a lot about appointees. the difference under the cabinet secretary is. depends on who the secretary -- i feel like it's less about the white house than you would think. now, if a president trump or president clinton decided to make it about that or you press secretary or communications director made about the and i suppose it could be about that. >> i think we've got one in the back. >> my name is jamal. reporter with diverse issues in higher education. wondering if anyone on the pelican address the potential ramifications of collaborating with the leakers? i'm talking about entities such as wikileaks or its node or something like that.

we have both candidates who have been subject to acts of different sorts by the candidates now. once you're in office it's a different situation. what d.c. is kind of the ramifications of just collaborating with entities like that with wikileaks? for instance, a time certain documents to go to certain publications. so how might something like that be viewed by either the candidates once they're in office? >> let me turn that went over to adam because your newspaper reported it and had, and has had to make decisions. decisions. >> we should stand up for donald trump in one respect. he's pro-transparency as regards to russian hacking of his opponents. [laughter] news organizations have a responsibility make independent judgment about matrix take it from wikileaks or anybody else, and decide whether they're accurate, whether they're newsworthy, whether they value publishing that outweighs

whatever private arms might be involved i think these are difficult questions, but from pentagon papers on words we try to make these decisions, and i think snow than would say there's a difference between wikileaks which simply dumps things willy-nilly without a filter, and snowden to think to his credit went to news organizations and said you guys make a judgment about what citizens in a democracy need to see. >> i would just add something to that. what we have seen, there is only one instance where the u.s. government has actually attempted in history, we are unaware of, to prosecute a member of the mainstream media for publishing leaked classified information. that was "chicago tribune" in 1940 at the height of world war ii. since then leaks investigation, criminal, the criminal charges against leakers have been focused on leakers but it was

one of the things that was really alarming about the james rosen situation. in order to get the warrant for mr. rose and e-mails, the department of justice filed an affidavit characterizing mr. rosen as a co-conspirator and potential himself liable under the espionage act. that was something that would shock the media, was very concerned. what we've seen and something we should keep in mind would talk about what a next administration might look like in terms of prosecuting leakers is whether we will still be in the same area where we are in now, which is that the government prosecute the leakers and usually goes after journalists to supply evidence in support of this leaks investigations. when someone like jim rice and is threatened with jail time it's because he's been accused because he's potential in contempt of course for violating an order or refusing to follow an order requiring him to

testify as to identities of resources. he himself was not accused of violating the espionage act. i think that an open question is whether a more aggressive department of justice might take that extra step. something we would want them to do but it is the question you would want, i don't think is necessarily a close question, particularly with the submission of the rosen affidavit. >> conflicting statements made by different prosecutors in different circumstances about whether a journalist could ever be jailed. i will say attorney general holder in the discussions about the rosen search warrant did reassure people that a journalist in this town at least under his administration would not go to jail simply for asking sources questions and for doing the job, and so it took some comfort spewed out also called the rosen incident, i'm paraphrasing, essentially the thing from his tenure as attorney general that bothered

him the most, the thing he regretted the most. so yes, there is that. >> i was on a panel the other night with former attorney general mukasey. i asked them whether he had given any thought to prosecuting journalists and he said i certainly fantasized about it. [laughter] >> good to know. more questions from the audience? one in the back. >> curtis also from mcclatchy. we are not trying to pack the court. i have a quick question. in my frustrating experience in dealing with foia and the oldest in the backlogs, from the federal agencies -- salon is -- one of the things i've been told repeatedly in the past say four or five years is that a well, we are constrained because of the sequester. they blamed the sequester reducing their resources to respond to my foia requests, and presumably others.

i'm wondering is there anything that a president can do to instruct agencies that they must devote a certain amount of resources to responding to foia? or is that something that congress would have to fix? >> congress, i guess i will take a big i know everyone loves to talk about foia. congress obviously could fix it by allocating funds. is not likely to happen? now. could the administration and get i think this would be done through the office of information policy at the department of justice. towel agencies that it is policy that you spend x amount of your budget or you have this many, i think would be scaled. it would have to be scaled based on the site at the agency of the number of foia requests. it is disproportionate.

it's not as though every agency gets as many foia requests as the department of justice or as the fbi individually. so if it was scaled i think absolutely the administration could set those parameters. there's no reason why it couldn't. it hasn't happened. again i think it's unfortunate. one of the steps that could be taken to improve foia is to fund it. i think journalists do, we are inclined to say, neediest inclined to say just what's with the delay? oftentimes there are resource constraint. i think as the increase comes as an increase in foia hasn't been an increase of findings to do with the increase spirit the obama administration did start a separate office, the office of government information services which was supposed to help out on the delay is at least an

ombudsperson for folks. hasn't worked out the? >> is within the national archives. base of an office within the national archives. it sort of -- i'd like to put a pin because i think things have changed the look at but the last foia reform bill that just passed, ogis which is viewed as somewhat toothless committed an independent report to congress for example. it had to go to the national archives. now can do that. it still has a pretty small step and it still not enormous organization but it does provide mediation services for requesters, and it can provide, and i think to the extent it's going to be successful it needed the reforms that just happen. i would say it hasn't been extraordinary successful in the last -- but could it be? moving toward i think yesterday to think on individual requester

basis there are advantages it would bring to the table. that being said, there's an agency or office within an agency looking for another crack at this point in time. it's possible. it's hard say how successful that's going to be. >> do something to take which keep an eye on that could adequate time for one more question. we will go to the gentleman in the front row. >> i was wondering you mentioned early about shield. that's something we been talking about since first day of j. school. is a something attainable or is it a pipe dream? if it's not a pipe dream and how do we get about getting it done? >> we've had several run ups to it in the less what i think declared the house back, got stalled in the senate and then i

think edward snowden happened, wikileaks happened and the political will was lost. and the budget problems took over the discussion. i think we need to get election behind us. i think we need to get it settled out and nothing will energize things more than another crisis involving a journalist being threatened with jail. we've gotten close that i wouldn't give it up and i would say to everyone in this room and everybody at home it's a very important effort and we shouldn't give it up and we should continue to press our congresspeople to pass the protections. >> very briefly, date shield laws, how well do they work to protect reporters or two judges end up saying for this, that, or the other reason you are not shielded? >> they come in different flavors. there are four different shield laws in the united states. they have different concentric circles. our own experience is they've

been very successful in keeping the information in the hands of the journalists where they belong. i think we're about out of time to let me thank everybody in the audience. a special shout and thank you to my colleague a thank you to the national press club journalism institute, and give it up and thank my pal. [applause] >> thank you all. [inaudible conversations] >> donald trump respond to a report in the "new york times" alleging he touched two women and a properly. his remarks came at a campaign rally in west palm beach, florida. >> and so now we address the slander and libels that was just last night thrown at me by the

clinton machine and the "new york times" and other media outlets as part of a concerted coordinated and vicious attack. it's not coincidence that these attacks come at the exact same moment and altogether at the same time as wikileaks releases documents exposing a massive international corruption of the clinton machine, including 2000 more e-mails just this morning. these vicious claims about me of inappropriate conduct with women are totally and absolutely false.

and the clintons and now it, and they know it very well. these claims are all fabricated. they are pure fiction and their outright lies. these events never ever happened, and the people that send them meekly fully understand if you take a look at these people. you study these people, and to understand also. the claims are preposterous, ludicrous, and defied truth, common sense and logic. we already have substantial evidence to dispute these lies, and it will be made public in an appropriate way and at an appropriate time. very soon. >> watch c-span's live coverage of the third debate between hillary clinton and donald trump on wednesday night. live debate preview for the university of nevada las vegas

starts at 7:30 p.m. eastern. the briefing for the debate audience is at 8:30 p.m. eastern and the debate is at 9 p.m. eastern. stay with the following the debate for your reaction including calls, tweets and facebook posting. watch the debate live or on-demand using your desktop, phone or tablet at c-span.org. this into live coverage on your phone with the free c-span rated at. downloaded from the app store or google play. >> in utah first republican senator mike leak is being challenged by democrat misty snow. she's the first transgender major party nominee in the u.s. senate race. this debate from brigham young university comes to us courtesy of utah debate commission. >> from the campus of brigham young university in provo, utah debate commission welcomes you to the utah senate candidates

debate. >> moderator: good evening. i'm cannot and i'm pleased to then invited to moderate this debate. we are live in the kbyu studios on the campus of brigham young university in provo for debate between candidates for the united states senate. tonight we will hear from the incumbent republican mike lee ann from his democratic challenger misty snow. we begin with each candidate making a 90-second opening statement. prior to the start of the debate it was determined misty snow will speak first. snow: all right. thank you very much. for civil on like to thank the utah debate commission for hosting this debate and thank all of you for watching this evening. my name is misty snow that i was born writer in the state of utah and lived my entire life in utah.