Category Archives: First Amendment

Muzzling the press, from Tsarnaev to Delauter

Previously published at WGBHNews.org.

The Frederick News-Post won the Internet Tuesday with a hilariously defiant editorial.

Faced with a threat by a city council member named Kirby Delauter to sue if his name was published without his permission, the Maryland newspaper responded with a piece headlined “Kirby Delauter, Kirby Delauter, Kirby Delauter” that repeated his name nearly 50 times and included his photo. And if that didn’t make the point sufficiently, the first letter of each paragraph spelled out “K-I-R-B-Y-D-E-L-A-U-T-E-R.”

Delauter’s ludicrous assault on the First Amendment was easily batted away. But not all matters involving freedom of speech and of the press are as amusing or as trivial. You need look no further than the Moakley Federal Courthouse in Boston, where the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev is about to begin without the benefit of television cameras inside the courtroom.

Tsarnaev may be sentenced to die on our behalf — yet we are being denied the right to watch the justice system at work, a crucial check on the awesome power of government. Last year a WGBH News Muzzle Award was bestowed upon U.S. Supreme Court Chief Justice John Roberts for his opposition to cameras in federal courtrooms. Unfortunately, the situation seems unlikely to change anytime soon.

At least the ban on courtroom cameras does not explicitly violate the First Amendment. The same cannot be said of Maine District Court Judge Jeffrey Moskowitz, who on Monday ruled that the news media were prohibited from reporting anything said in court by the defendant in a domestic-violence case, a criminal defense lawyer named Anthony Sineni. Reporting on witness testimony was prohibited as well.

The Portland Press Herald published this article in defiance of the gag order, and reporter Scott Dolan writes that Moskowitz has called a hearing for later today — possibly to express his displeasure over the Press Herald’s actions, or possibly to acknowledge that he got it wrong.

The Supreme Court has ruled that nearly all gag orders such as Moskowitz’s are unconstitutional. “There is a 100 percent chance this order is unlawful,” said Press Herald lawyer Sigmund Schutz, who was quoted in a blog post by Justin Silverman, executive director of the New England First Amendment Coalition. “There is no question that the U.S. Supreme Court and other courts have been very clear, what occurs or is said in the court is a matter of public record.”

A different sort of gag order is preventing us from learning everything we might know about the death of Michael Brown, the black unarmed teenager who was fatally shot by Darren Wilson, a white police officer, in Ferguson, Missouri, earlier this year. Whether Wilson’s actions were justified or not, the incident helped expose the racial divide in Ferguson and sparked protests nationwide.

Now it turns out that a member of the grand jury that chose not to indict Wilson wants to speak, but is prohibited from doing so by a Missouri law that requires grand jurors to remain silent. The grand juror has filed suit against St. Louis County Prosecutor Robert McCulloch to be allowed to discuss the case.

Though it’s not clear what the grand juror has to say, a report by Chris McDaniel of St. Louis Public Radio offers some hints. Quoting from the lawsuit, McDaniel writes: “In [the grand juror]’s view, the current information available about the grand jurors’ views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges.” (McDaniel notes that grand jury decisions need not be unanimous.)

Though it is not unusual for grand jury members to be prohibited from speaking, the ACLU, which is assisting with the suit, says that in this particular case “any interests furthered by maintaining grand jury secrecy are outweighed by the interests secured by the First Amendment.” The Boston Globe today editorialized in favor of letting the grand juror speak.

What all of these cases have in common is the belief by some government officials that the press and the public should be treated like mushrooms: watered and in the dark. These matters are not mere threats to abstract constitutional principles. they are assaults on the public’s right to know.

Or as the Frederick News-Post so eloquently put it: Kirby Delauter! Kirby Delauter! Kirby Delauter!

 

A Baltimore TV station’s incendiary ‘error’

A television station in Baltimore edited video of protesters calling for the jailing of “killer cops” to make it sound like they were chanting “kill a cop.” I find it horrifying that anyone this side of the white supremacist movement would do something so irresponsible at a time when relations between the police and communities of color are already fraught.

David Zurawik of the Baltimore Sun reports that WBFF, a Sinclair-owned Fox affiliate, has called the incident “an error” and posted an apology on its website (which I can’t find on  the station’s home page or its news page this morning). Some error. In fact, the protesters were chanting, “We won’t stop. We can’t stop ’til killer cops are in cell blocks.” The footage was recorded at a protest in Washington on Sunday and was carried by C-SPAN.

If this really was an error, it’s a matter of someone making some pretty ugly assumptions about the protesters. The fact that the line “are in cell blocks” was edited out raises serious questions about whether this was truly an error. Mediaite has posted the original WBFF video. You should take a look.

Is this the media fail of the year? I think so. Bad as Rolling Stone’s false story about a sexual assault at UVA was, WBFF’s ignorant stunt could incite violence. Broadcast stations such as WBFF are licensed and regulated by the FCC. I am not a fan of letting the government poke into matters involving the First Amendment. But in this case I’d say a hearing is in order. We need to know how this happened.

What New Haven could teach Ferguson about police video

WGBHNews.org has posted an excerpt from “The Wired City” about a controversy over citizens’ video-recording police that played out in New Haven in 2010 and ’11 — relevant given the ongoing violence in Ferguson, Missouri, and the vital role of citizen video in documenting what is taking place on the streets.

As I tried to show, the New Haven Independent’s repeated coverage of the controversy helped lead to a number of reforms, including statements from the mayor and the police chief in support of the right to record; a training session at the city’s police academy; and a bill in the state legislature that didn’t pass but that served further to raise consciousness about the issue.

Police-records bill on its way to governor’s desk

It looks like we have our first WGBH News Muzzle Awards winner of 2015. Last night the Massachusetts Legislature passed Senate Bill 2334, which, as I wrote here yesterday, would block access to certain police records now open to the public.

The ostensible purpose is to protect victims of domestic violence, but as First Amendment lawyer Jeffrey Pyle tells David Scharfenberg of The Boston Globe, “Problems with the criminal justice system are rarely, if ever, solved by decreasing transparency.”

The bill had not come to a vote before Scharfenberg’s deadline, but Globe reporter Michael Levenson tweets that it’s now on its way to Gov. Deval Patrick’s desk — and that he’s likely to sign it.

By the way, Scharfenberg calls the bill “a little-noticed measure.” But the Massachusetts Newspaper Publishers Association flagged it months ago, and I brought it up on WGBH-TV’s “Beat the Press.” If this had gotten more attention early on, we might not find ourselves where we are today.

Bill would block access to some police records

The Massachusetts Legislature may vote later today on Senate Bill 2334, which would block access to certain police records now open to the public. The people’s business should be done in the open, and legislators should vote no. I’ve already emailed my representative and senator. It’s easy enough to do, and I urge you to click here.

The Massachusetts Newspaper Publishers Association explains:

Bill Advances to Block Access to Police Reports and Logs

Could Result in Protecting Perpetrators from Disclosure

A legislative conference committee yesterday issued a report (SB 2334) that will close police reports and logs now open to the public. The bill is likely to be voted on today. I urge you to contact your legislators and register your opposition to this language.

Currently, G.L. c. 41, s. 97D provides that reports of rape and sexual assault are not public. This bill would add to that list “reports of abuse perpetrated by family or household members.”

Also, the bill would amend G.L. c. 41, s. 98F, to exempt from public view two categories of information from police logs:

  • Any information concerning responses to reports of domestic violence, rape or sexual assault.
  • Any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A.

As we have noted before, closing police logs could have the unintended consequence of shielding perpetrators from public disclosure — even when the perpetrators are public officials or others in positions of trust or authority.

One example, described in this Boston Globe article, was the 2012 arrest of Waltham’s police chief on domestic assault charges. Had this law been in effect, his arrest would have been shielded from the public.

Robert Ambrogi, Executive Director
Massachusetts Newspaper Publishers Association

Public media trade site takes note of Muzzles’ new home

Peter Kadzis, senior editor of WGBH News, with Web producers Abbie Ruzicka and Brendan Lynch.

Peter Kadzis, senior editor of WGBH News, with Web producers Abbie Ruzicka and Brendan Lynch.

Current, the trade website for people in public media, has posted a nice feature on the New England Muzzle Awards’ newish home at WGBHNews.org. I do want to point out that though The Boston Phoenix is no more, the Muzzles continue to be published at The Providence Phoenix and The Portland Phoenix. Also: my friend and co-conspirator Harvey Silverglate deserves all the credit for the Campus Muzzles, which are also mentioned in the article.

Photo by WGBH News.

Presenting the 17th Annual New England Muzzle Awards

Muzzles logo

Click on image to read the Muzzle Awards.

U.S. Sen. Ed Markey, Rhode Island Gov. Lincoln Chafee, Massachusetts Gov. Deval Patrick and U.S. Attorney Carmen Ortiz (again) might consider running the other way when we try to present them with our coveted statuettes for dishonoring the First Amendment.

The 17th Annual New England Muzzle Awards are now online at WGBHNews.org and The Providence Phoenix. They should be up soon at The Portland Phoenix as well. This is the second year that WGBH has served as home base following 15 years at the late, great Boston Phoenix.

As always, the Muzzles are accompanied by an article on Campus Muzzles by my friend and sometime collaborator Harvey Silverglate. There are a couple of new touches this year as well: the WGBH design is responsive, which means it looks just as great on your tablet or phone as it does on your laptop; and WGBH reporter Adam Reilly, WGBHNews.org editor Peter Kadzis and I talk about the Muzzles on “The Scrum” podcast, which of course you should subscribe to immediately.

Peter, by the way, is a former editor of the Phoenix newspapers, and has now edited all 17 editions of the Muzzles.

Finally, great work by WGBH Web producers Abbie Ruzicka and Brendan Lynch, who hung in through technical glitches and my whining to make this year’s edition look fantastic.