Category Archives: First Amendment

More on The Berkshire Eagle and the racist column

Dan Glaun of MassLive.com follows up on The Berkshire Eagle’s decision to publish a racist screed by Pittsfield-based “conservative activist” Steven Nikitas. (My earlier post.)

Jim Bronson, chair of the Berkshire County Republican Association, which sponsors the “Right from the Berkshires” series of which Nikitas’ column was a part, concedes to Glaun that Nikitas’ language was “in artful” but denies that the piece was racist — and says he plans to respond to Eagle editor Kevin Moran’s criticism of the group in its next column.

Bronson adds that he read Nikitas’ column before it was submitted to the Eagle, but says he doesn’t know whether Nikitas is a member of his organization. Well, if Bronson doesn’t know, who would?

Then there’s this:

Bill Everhart, the Eagle’s editorial page editor, said that though he was not surprised by the outrage, he did not expect so much of it to be directed at the paper itself. Some critics, he said, may be unaware of the Eagle’s long history of progressivism and civil rights advocacy, and of its editorial board’s disagreement with Nikitas’ views.

Meanwhile, a site called Talking New Media publishes a commentary by D.B. Hubbard defending the Eagle’s decision to publish Nikitas’ column under the snarky headline “Berkshire Eagle editor explains to readers why papers print opinion pieces they may not agree with.”

Hubbard quotes a comment I posted on the Eagle’s website without identifying me and mistakenly writes that comments like mine led editor Kevin Moran to write his response. In fact, I posted my comment after Moran’s column was published, a tidbit easily gleaned by checking out the time stamps.

Berkshire Eagle publishes, defends a racist column

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See this follow-up post.

The venerable Berkshire Eagle of Pittsfield, founded in the 1890s and winner of the 1973 Pulitzer Prize for editorial writing, recently published a racist column by a “conservative activist” named Steven Nikitas. After outraged readers complained, editor Kevin Moran responded in a column of his own that though he vehemently disagreed with Nikitas’ screed, he considered it well worth publishing. Moran wrote:

Views and opinions — whether they be considered by some, most or all people to be ignorant or brilliant or somewhere in between — tell us a lot about the community in which we live, work, go to school, vote, debate, worship, pay taxes, make choices and decisions, etc.

That’s true. And a community paper like the Eagle should provide a public forum — to act as “a town square,” as Moran puts it. But it should also have standards for what it chooses to publish, and that’s where I think the Eagle blew it. Presumably Moran would not publish a column calling on white residents to burn crosses in order to drive their African-American neighbors out of the area. And no, Nikitas’ column isn’t as bad as that. But if you read it, you will see that it’s bad enough. Here is how Nikitas begins:

After the burning and looting in Baltimore and Ferguson we are seeing endless media hand-wringing that somehow “we” must all do something more to help black America. And “we” means white people, taxpayers, businesses, the criminal justice system, the universities and the government. But blacks must now pull themselves up. “We” have done far too much already with tens of trillions in handouts in the last 50 years, and it has backfired badly.

Conservatives and Republicans have offered sure-fire solutions for black America and they have been rejected repeatedly. Our advice has been for African-Americans to discard the leadership of the Democrat party and charlatans like Al Sharpton. After all, far-left liberalism has obviously failed. The proof is everywhere.

Conservatives have recommended over and over that blacks reform their culture from top to bottom by respecting marriage and the family and the law, returning to their churches, embracing education and hard work, avoiding violence and debased rap music, speaking clearly, shunning drugs and profanity, and pulling up their pants. And to stop blaming all of their problems on everyone else. That is immature, cowardly and counterproductive.

What respectable business owner would hire a young black male from the “hood” who won’t even show up for work? What successful enterprise is going to establish itself in crime-ridden inner cities? Isn’t looting and burning self-defeating?

And so it goes, for 750 words in total.

A few observations.

First, if your instinct is to argue that Nikitas has a First Amendment right to his opinion, my answer is yes, he certainly does. He should get a blog. The Eagle is not the government. It is a newspaper, and it has a First Amendment right to choose what to publish and what to reject. The Eagle has risked its brand and reputation for the sake of providing a platform for a racist screed.

The New Haven Independent, a nonprofit community news site that is the subject of my book “The Wired City,” offers a useful counterview: it screens comments before they are posted, and won’t publish those it considers racist. The policy begins: “Yes we do censor reader comments. We’ll continue to.” And these are comments, mind you, not full-blown columns.

Second, since we began talking about this on Twitter and Facebook Sunday (here’s the public Facebook link, where you’ll find a lively discussion), I’ve seen several people argue that the Eagle was providing a service by calling attention to a racist in the its midst. I find that argument ridiculous. You call attention to racism with reporting, not by providing a platform to a racist. Besides, racists are not particularly exotic; you can find them everywhere.

Third, this is a challenge for the Massachusetts Republican Party because, as Moran explains, Nikitas’ column is part of a regular series called “Right from the Berkshires” produced by members of the Berkshire County Republican Association. Will that group disavow Nikitas’ views? If not, will the state party disavow the regional group? I’ve already heard from one Republican activist who believes the state party should order the Berkshire group to stop using the party’s name.

I have a feeling that there’s going to be more to come. It’s already starting to circulate nationally — after I found out about it, I discovered that Talking Points Memo was already on it. It will be interesting to see where this goes from here.

Journalists, advocates back public-records reform

Journalists, political figures and others testified on Beacon Hill Tuesday in favor of legislation that would strengthen the state’s public-records law. Joshua Miller covers the story for The Boston Globe. In March, the School of Journalism faculty at Northeastern University called for public records reform. Below is a press release on Tuesday’s hearing from the New England First Amendment Coalition.

The New England First Amendment Coalition testified Tuesday in support of legislation that would improve access to public records in Massachusetts. Justin Silverman, NEFAC’s executive director, spoke to a state legislative committee on behalf of the coalition, describing a lack of access to records and a strong need for reform.

“The ability to gather news and inform communities, to understand government and engage with elected leaders, is essential to the democratic process,” Silverman said. “Yet in my role as executive director I regularly speak with journalists and community members from throughout the state who are frustrated at the inability to obtain information about their government, information that is public by law but in reality is unobtainable and essentially secret.”

The Joint Committee on State Administration and Regulatory Oversight provided the hearing to allow testimony on House Bill 2772 and Senate Bill 1676. The legislation would eliminate technological and administrative barriers to the enforcement of the public records statute. It would also update the law to reflect advances in technology, require state agencies to have a “point person” to handle records requests, reduce fees for obtaining public records, and provide attorneys’ fees when agencies unlawfully block access to public information.

“With this legislation, for example, the concerned father who is getting the runaround from school officials over policies affecting his children will have a designated point-person to help fulfill his request,” Silverman said. “That same parent won’t be charged hundreds of dollars in copying costs when electronic files of those policies exist. The journalist from a small suburban newspaper who successfully appealed a denial of records but still hasn’t received those records can use the attorneys’ fees provision to help find a lawyer to litigate on his behalf.”

NEFAC’s full testimony can be read here. More information on the legislation and the coalition’s work as a leading member of the Massachusetts Freedom of Information Alliance — a group formed specifically to advocate for public records reform — can be read here.

Arrest records and mug shots are not secret under state law

pyleBy Jeffrey J. Pyle

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled that arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes “initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.

Northeastern j-school faculty calls for public-records reform

The state’s weak public-records law has long needed to be reformed. A lack of meaningful penalties for government agencies that refuse to turn over public records, outrageous fees and other problems make Massachusetts a laggard when it comes to transparency. Several years ago the State Integrity Investigation awarded Massachusetts a richly deserved “F” on public access to information.

Last week brought mind-boggling news from Todd Wallack of The Boston Globe, who reported that Secretary of State William Galvin’s office has issued rulings allowing certain formerly public records to be suppressed, including arrest reports of police officers charged with drunken driving. (Galvin later turned around and called for an initiative petition to put some teeth in the public-records law. Make of that what you will.)

Now the Globe, the Boston Herald and GateHouse Media Massachusetts have editorialized in favor of significant reform. The Massachusetts Freedom of Information Alliance, a group comprising the New England First Amendment Coalition, the ACLU of Massachusetts, the Massachusetts Newspaper Publishers Association and others, is calling for immediate action.

Seventeen of my colleagues and I at Northeastern’s School of Journalism lent our voices to the cause this week with a letter that has been published in the Globe, the Herald and (so far) two GateHouse papers: The Patriot Ledger of Quincy and The Herald News of Fall River. Because the Globe and the Herald were unable to run everyone’s names, I am posting them here. They include full-time as well as adjunct faculty:

  • Dan Kennedy, interim director
  • Chris Amico
  • Mike Beaudet
  • Nicholas Daniloff (emeritus)
  • Charles Fountain
  • Carlene Hempel
  • Joy Horowitz
  • Jeff Howe
  • William Kirtz
  • Dina Kraft
  • Jean McMillan Lang
  • Laurel Leff
  • Gladys McKie
  • Lincoln McKie
  • Bill Mitchell
  • Tinker Ready
  • James Ross
  • Alan Schroeder

This is Sunshine Week, an annual celebration of open government. In Massachusetts it’s time to let the sun shine in.

White House to suppress still more public records

This is Sunshine Week, an annual celebration of open government. And President Obama is celebrating — by shrouding more White House public records behind a veil of secrecy. OK, this only makes official what had been longstanding policy. But still.

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!