Category Archives: First Amendment

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

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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.

The un-Muzzling of anti-abortion protesters

In 1999 I gave a Boston Phoenix Muzzle Award to Susan Fargo and Paul Demakis, two Massachusetts legislators pushing for an abortion-clinic buffer zone. Today the U.S. Supreme Court agreed, ruling that those buffer zones are an unconstitutional abridgment of the First Amendment.

Salem News fights for, gets documents in Chism case

Screen Shot 2014-06-20 at 11.04.30 AMIf you think the public is entitled to know about the security arrangements (or lack thereof) for 15-year-old murder suspect Philip Chism, then you should thank The Salem News.

Chism, charged with murdering Danvers High School teacher Colleen Ritzer, recently attacked a female youth worker at a detention center in Dorchester. The News went to court and asked that documents related to the case be released.

Today the News’ court reporter, Julie Manganis, writes that prosecutor Kate MacDougall had expressed concerns ahead of time that Chism should not be left alone with female staff. We also learn that Chism allegedly attacked the youth worker with a pencil, then “choked and beat her about the head.”

Even more alarming, MacDougall recently raised concerns about serious security lapses at the state’s Worcester Recovery Center and Hospital, where Chism is now being held.

The documents are online here.

This is important public-interest journalism, and it wouldn’t be possible if the News hadn’t been willing to devote legal resources to arguing for the release of the documents. The First Amendment requires that court proceedings be open to all. Good for the News, and good for Superior Court Judge Howard Whitehead, who ordered that the information be made public.

On Greenwald, Kinsley is both right and wrong

Michael Kinsley

Michael Kinsley

A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.

Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”

It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.

The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.

If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).

But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.

And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.

I wrote more about the legal background for The Huffington Post last June.

Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.

Obama White House tramples on academic inquiry

Gerry Adams

Gerry Adams

This commentary was previously published at WGBH News.

Once again, the Obama White House has demonstrated its contempt for journalism and other forms of independent inquiry.

As we should all know by now, journalists do not have a First Amendment right to protect their anonymous sources. Following the same principle, academic researchers have no constitutional protection if they wish to keep secret the identities of people who provide them with evidence about serious crimes.

Thus it should be no surprise that U.S. District Judge William Young last year ordered Boston College to turn over parts of the Belfast Tapes, an oral-history project involving members of the Irish Republican Army. Those tapes led to the arrest Wednesday of Sinn Féin leader Gerry Adams, who has been accused of involvement in the notorious 1972 murder of an innocent woman named Jean McConville. (Adams denies the charges.)

The struggle for Irish independence was a decades-long guerrilla war. All sides, including the British military, conducted themselves shamefully. When seeking a resolution to such horrors, the parties generally agree that reconciliation requires them to overlook acts that would never be tolerated in normal times. Nelson Mandela’s magnanimity in South Africa is the best-known example, but there are many others.

But the British government leaned on the White House, and Attorney General Eric Holder subpoenaed the tapes. There was little either BC or the courts could have done about it once Obama and Holder made up their minds to go along with British demands rather than stand up for free academic inquiry. As former lieutenant governor (and former BC trustee) Tom O’Neill puts it:

In the Boston College case, our “special relationship’’ with Britain is raising serious and troubling questions: Are we abridging academic freedom in ways that will prevent participants in major international issues from stepping forward with their stories? Is the British demand for documents, and its search for alleged wrongdoing, driven as much by the politics of Ireland today as it is by the search for justice for past crimes? And why, when both sides in the Troubles were guilty of so much wrongdoing, is the British prosecution seemingly intent on only pursuing crimes allegedly committed by only one side?

As the journalist Ed Moloney, a leader of the Belfast Tapes project, tells The Boston Globe, “The damage is done. The whole process of conducting academic research in the United States of America on sensitive subjects with confidential sources has been dealt a death blow by the Obama Department of Justice.”

Finally, I should note that the legal case involving the Belfast Tapes has been enormously complex and marked by enmity between Moloney and Boston College officials. If you would like to learn more, Beth McMurtrie wrote a long piece earlier this year for The Chronicle of Higher Education.

Michael Mann, Mark Steyn and the court of public opinion

220px-Mark_Steyn

Mark Steyn

Mark Steyn is one of my least favorite pundits. But I also don’t like it when people use libel to settle disputes. It seems to me that the climate scientist Michael Mann has the public platform he needs to fight back against Steyn’s smears without having to resort to a lawsuit.

Nevertheless, I think U.S. Judge Frederick Weisberg, who’s presiding over the matter of Mann v. Steyn, probably got it right in deciding that the case can move forward, as Mariah Blake reports for Mother Jones. Ignore the hyperbole over Steyn’s loathsome comparison of Mann to Jerry Sandusky; the key is that Steyn wrote Mann had trafficked in scientifically “fraudulent” data. Steyn claims that’s a matter of opinion, but the question of whether someone committed fraud is something that is either true or not. And if it’s not true, then Steyn may well be found to have libeled Mann. The standard was set forth by the U.S. Supreme Court in Milkovich v. Lorain Journal Co. (1990).

I should note that Jonathan Adler, writing at The Volokh Conspiracy, believes that Steyn’s statements amount to “hyperbolic expressions of opinion, not statements of fact,” and should therefore be considered protected speech. My response is that it’s a close enough call that a jury should be allowed to decide.

In any event, Steyn has gotten himself into a significant mess with his prose and with his mouth. He’s reportedly had a falling-out with one of his co-defendants, the conservative journal National Review, and he currently lacks legal representation as well. I can’t say I’m sympathetic. This is a guy who once called former senator Max Cleland, who lost three limbs in Vietnam, “a beneficiary of the medal inflation that tends to accompany unpopular wars.”

But is this how we wish to decide public controversies? In court? There are any number of public forums available to Mann for him to defend himself against Steyn’s accusations, and those forums would probably provide Mann with greater satisfaction than a libel suit that could drag on for years. My advice to Professor Mann: Drop the suit and go on the attack.

Photo via Wikipedia.

NEFAC honors James Risen, a free-press hero

James Risen

James Risen

James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.

On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented  with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”

Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.

My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:

There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.

Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.

Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.

The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.

More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.