Category Archives: Free speech

In Bridgewater, a dispute over free press and privacy

I had wanted to talk about this yesterday on “Beat the Press,” but was unable to verify the facts in time. Today, the Boston Globe’s Peter Schworm reports on a controversy that has enveloped The Comment, the student newspaper at Bridgewater State University, which is under fire for reporting the name of an alleged rape victim who spoke at a public rally.

University officials are insisting that [see below] pressuring The Comment to remove the woman’s name from the online version of its story. But on Friday, The Comment’s editor, Mary Polleys, told me that the woman had been identified by name in an announcement sent before the rally to about 400 people via Facebook. The outdoor rally was attended by about 200 people. And, Polleys said, the woman was introduced by name and then proceeded to address the crowd through a bullhorn. Indeed, the story, by Leah Astore, is accompanied by a photo of the woman holding the bullhorn and standing before a large crowd.

I am not identifying the woman here only because I don’t wish to become a player in this controversy. But I see nothing wrong in what The Comment did, and I think Polleys has taken exactly the right stand in refusing to unpublish key details. Essentially The Comment is in trouble for committing journalism.

The one decision The Comment made that I might question is identifying the woman’s previous college on the basis of information that it found online. Under the ethical guidelines that are followed by virtually all news organizations, victims and alleged victims of sexual assault are not identified by name without their consent. It’s clear that the speaker at the rally had given her consent to be identified publicly, only to have second thoughts once she saw her name and photo in The Comment. But I’m uncomfortable with the paper’s decision to add details that the woman herself did not offer.

Another interesting aspect is the unintended consequences of what happens to news in the online era. If this story had appeared only in print, then it wouldn’t have circulated beyond campus, and it’s unlikely that it would have sparked much of an uproar. Certainly no one would be calling for the unpublishing of the woman’s name. (We recently talked about unpublishing on “Beat the Press.”) Indeed, this entire story strikes me as an example of the increasing confusion we’re all experiencing over what’s public and what’s private in the age of social media.

The Brockton Enterprise has been covering this story, and it appears to have a worthwhile follow-up today. I can’t get GateHouse stories to load today, but perhaps it will pop up later.

My friend Harvey Silverglate’s organization, the Foundation for Individual Rights in Education (FIRE), has gotten involved as well.

And the story has now gone national at JimRomenesko.com.

Note: Polleys informs me by email that though the administration is pressuring The Comment to remove the speaker’s name, it has not insisted on it. It’s a fine line, but it’s worth making the distinction. Needless to say, the administration is welcome to weigh in here as well.

City settles with man arrested for video-recording police

Andrew Phelps of the Nieman Journalism Lab has posted a useful round-up following the ACLU’s announcement that the city of Boston will pay $170,000 to settle a lawsuit brought by a man who was arrested while attempting to video-record police activity.

The suit was filed by Simon Glik, a lawyer, after he was arrested while recording the arrest of a teenager on the Boston Common in October 2007. The settlement follows a ruling last fall by the U.S. Court of Appeals for the First Circuit that Glik was “exercising clearly established First Amendment rights.”

The Boston Police Department has since reversed its stance that such video-recording violated the state’s wiretapping law. Said Glik’s lawyer, Daniel Milton:

It is important that citizens be able to record police acting in public so that the police can be held accountable for their actions. As we see all around the country and world, images captured from people’s cellphones can have a remarkably important effect on public debate of public information. It is ultimately a tool of democracy.

As media observer Dan Gillmor noted on Twitter, “It’s not the city of Boston that will pay for violating 1st Amendment; it’s the taxpayers. Good result anyway.”

Here’s the full text of the ACLU press release:

BOSTON — Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees.

Mr. Glik was forced to defend himself against criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a judge threw out those charges, Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. This settlement resolves that case.

The settlement follows a landmark ruling last August by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.

The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik’s case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment’s guarantee against false arrests.

“The law had been clear for years that openly recording a video is not a crime. It’s sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” said Glik.

“The court’s opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public. With this issue squarely resolved against it, it made sense for the City to settle the case rather than continuing to waste taxpayer money defending it,” said David Milton, one of the attorneys for Glik.

As part of the settlement, Glik agreed to withdraw his appeal to the Community Ombudsman Oversight Panel. He had complained about the Internal Affairs Division’s investigation of his complaint and the way they treated him. IAD officers made fun of Glik for filing the complaint, telling him his only remedy was filing a civil lawsuit. After the City spent years in court defending the officers’ arrest of Glik as constitutional and reasonable, IAD reversed course after the First Circuit ruling and disciplined two of the officers for using “unreasonable judgment” in arresting Glik.

After Glik filed suit, the City of Boston appeared to change its policy of letting police officers arrest and charge people with illegal wiretapping for recording them with cameras or cellphones in plain sight. The City developed a training video based on facts similar to the Glik case, instructing police officers not to arrest people who openly record what they are doing in public.

“The First Amendment includes the freedom to observe and document the conduct of government officials, which is crucial to a democracy and a free society. We hope that police departments across the country will draw the right conclusions from this case,” said Sarah Wunsch, ACLU of Massachusetts staff attorney.

Image via Wikimedia Commons.

Sen. Kerry on Internet piracy

Last month I praised Sen. Scott Brown for his quick response to those of us who signed an online petition opposing draconian anti-piracy bills being considered by Congress. On Monday, I heard from Sen. John Kerry as well. Here’s what he wrote:

Dear Dan:

Thank you for your letter regarding the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). I appreciate hearing from you on this important issue.

I have long championed the cause of innovation and an open Internet. Firms operating on and off the Internet strongly rely on intellectual property laws to help protect their investments and ensure a just return for their goods and services. Online piracy and copyright infringement hurts our economy and costs American businesses more than 200 billion dollars a year. Many infringers operate from foreign countries in order to avoid US law enforcement. As a result, under current law, American authorities are limited in what they can do to bring these rogue sites to justice.

As you know, the PROTECT IP Act was intended to protect American businesses from intellectual property theft on foreign websites. Among other things, the bill would provide the Attorney General with the authority to seek a court injunction against a foreign website that engages in copyright infringement. The court could also require U.S. websites to block access to websites found to be dedicated to infringing activities. For example, search engines could be required to disable links to the website that is found to be violating copyright of a US company.

However, there are a number of serious and legitimate concerns regarding the scope of the legislation, as well as the potential for abuse, censorship, or other unintended consequences. The authors recognize the legislation still needs work and I will oppose any proposal that would fundamentally undermine or impede the ability of people to communicate, compete, and innovate using the Internet.

I am pleased that Majority Leader Reid has indefinitely postponed Senate consideration of the PROTECT IP Act, and I will continue to review and work to improve legislation to both protect the intellectual property of American businesses and to ensure the web remains free and open. As I consider proposals to address these issues, I will keep your views in mind.

Thank you again for contacting me on this topic. Please don’t hesitate to reach me again on this or any other issue in the future.

Marty Baron warns press against fear and timidity

Marty Baron

Earlier today I attended an event honoring Boston Globe editor Marty Baron as the 2012 winner of the Stephen Hamblett First Amendment Award, presented by the New England First Amendment Coalition.

Baron is the second winner. The first, in 2011, was retired New York Times columnist Anthony Lewis, a longtime defender of the First Amendment.

Baron’s talk is well worth reading in full. Afterwards he sent me the text at my request, and I’m pleased to present it here. I was particularly struck by this, which comes near the end of his speech:

The greatest danger to a vigorous press today, however, comes from ourselves.

This is a moment in American history when the press has been made a fat target. The press is routinely belittled, badgered, harassed, disparaged, demonized, and subjected to acts of intimidation from all corners — through words and actions, including boycotts, threats of cancellations (or defunding, in the case of public broadcasting), and even surreptitious taping, later subjected to selective, deceitful editing. Our independence — simply posing legitimate questions — is seen as an obstacle to what our critics consider a righteous moral, ideological, political, or business agenda. In some instances, they have deployed scorched-earth tactics against us in hopes of dealing a crippling blow.

In this environment, too many news organizations are holding back, out of fear — fear that we will be saddled with an uncomfortable political label, fear that we will be accused of bias, fear that we will be portrayed as negative, fear that we will lose customers, fear that advertisers will run from us, fear that we will be assailed as anti-this or anti-that, fear that we will offend someone, anyone. Fear, in short, that our weakened financial condition will be made weaker because we did something strong and right, because we simply told the truth and told it straight.

The full text of Baron’s prepared remarks — minus an improvised shoutout he gave to classmates from Lehigh University who were on hand — follows.

***

This award is named after a great publisher, Stephen Hamblett, who helped build a great newspaper, the Providence Journal.

The first award was given, last year, to a magnificent journalist, Tony Lewis — whose talent and erudition made him a leading expert on the First Amendment and one of the country’s pre-eminent columnists, at the New York Times.

And today I get to stand before so many extraordinary leaders in the field of journalism — publishers, writers, editors, journalists of every type — whose dedication to our craft and our mission serves as inspiration to me daily.

So, I am honored that I was invited to be with you to accept this award. And I am deeply grateful for what it means. This is recognition not solely for me, but also for all of my colleagues at The Boston Globe, many of whom were kind enough to be here today. Continue reading

Sen. Brown on why he oppose anti-piracy bill

Back in November, I was one of many people who signed an online petition to stop an attempt by the media industry to persuade Congress that it should pass anti-piracy laws that threatened First Amendment rights on the Internet. A little while ago U.S. Sen. Scott Brown sent an email to those who signed that petition. Here’s the full text:

Dear Dan,

Thank you for contacting me regarding the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act (S. 968).  I am strongly opposed to this legislation.

As you know, Senator Patrick Leahy (D-VT) introduced S. 968 on May 12, 2011.  The PROTECT IP Act aims to provide law enforcement with tools to stop websites dedicated to online piracy and the sale of counterfeit goods.  However, many Americans feared that S. 968 would stifle freedom of expression and harm the Internet.

The Internet has been a source of dynamic growth in our economy and is responsible for employing many people in Massachusetts.  I have very serious concerns about increased government interference in this area and the effect of the PROTECT IP Act and the Stop Online Piracy Act (H.R. 3261, House companion legislation) on the Internet.  On January 18, 2012, I announced my opposition to the PROTECT IP Act.  You will be pleased to know that with opposition to the bill mounting, on January 20, 2012, the Senate Majority Leader announced that the scheduled vote on the PROTECT IP Act has been indefinitely postponed.

Again, thank you for sharing your views with me.  As always, I value your input and appreciate hearing from you.  Should you have any additional questions or comments, please feel free to contact me or visit my website at http://www.scottbrown.senate.gov.

Sincerely,
Scott P. Brown
United States Senator

Good for Brown — both for his opposition to this draconian legislation, and for letting his constituents know where he stands.

Fighting for our online freedom of speech

As I’m sure you already know, Wikipedia’s English-language site is the most prominent to go dark today in protest of two bills being considered by Congress to crack down on copyright infringement.

The bills, the Stop Online Piracy Act (SOPA), in the House, and the Protect IP Act (PIPA), in the Senate, are being pushed by major media corporations. Copyright infringement is a real problem, of course, but these bills would place the interests of copyright-holders above all other considerations. Save the Internet puts it this way:

If they are passed, corporations (with the help of the courts) will become the arbiters of what is and isn’t lawful online activity, with millions of Internet users swept in their nets as collateral damage.

Earlier item here. Note that the Big Brother poster I used to illustrate the item is missing. I wonder if that has anything to do with the protest.

And be sure to have a look at Google.

Appeal filed in bloggers-aren’t-journalists case

Lawyer-blogger Eugene Volokh has filed an appeal in the matter of the Montana blogger who lost a $2.5 million libel case after a federal judge ruled she was not entitled to the legal protections enjoyed by journalists.

“The motion for new trial,” Volokh writes, “argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media.”

I wrote about the case last month for the Huffington Post. In a nutshell, U.S. District Judge Marco Hernandez ruled that Crystal Cox, a self-described “investigative blogger,” could not be considered a journalist under Oregon law, where she was sued. Hernandez wrote that he reached that conclusion because Cox did not work for a newspaper or broadcast outlet, and because she lacked training and failed to demonstrate professional standards.

Hernandez’s ruling had two effects. First, Cox could not invoke Oregon’s shield law to protect her source or sources, whose identity was sought by the plaintiffs, a financial-services company and one of its executives. That ruling was actually of little account, since even established media organizations can’t invoke shield laws to defend themselves against libel suits.

Of far more importance was Hernandez’s ruling that the plaintiffs would not have to prove Cox had acted negligently — only that what she had published was false and defamatory. In the 1974 case of Gertz v. Robert Welch, the U.S. Supreme Court ruled that libel plaintiffs must prove the defendant acted with some degree of fault, with negligence as the lowest standard the states could require. But, seizing on an ambiguity in the wording, Hernandez claimed the Gertz protection only applies to professional journalists.

Volokh, by contrast, argues that the U.S. Supreme Court has made it clear for many decades that journalists do not enjoy any special protections under the First Amendment — meaning that any rulings the court has made about the press apply to everyone, not just to those carrying a press pass from a newspaper or television station. (Which was the main thrust of my Huffington Post commentary.) According to the brief, filed by Volokh and Benjamin Souede:

[W]hile the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights.

As several people who’ve looked at this case have reported, most notably David Carr of the New York Times, there is ample evidence that Crystal Cox’s conduct was reprehensible, and that the plaintiffs — Obsidian Financial Group and one of its executives, Kevin Padrick — might easily have won their libel case even if they had been required to meet the Gertz negligence standard.

What makes this case important is not Cox, but rather the principle that all of us — not just professional journalists — should be able to speak and write freely without inadvertently running afoul of libel laws.

Mehanna verdict: Speech, actions or both?

Was Tarek Mehanna of Sudbury found guilty because of his loathsome but constitutionally protected free-speech activities on behalf of Al Qaeda? Or did the jury believe he actually engaged in terrorism, especially during a trip to Yemen, where prosecutors say he sought training?

I hope reporters covering the case will seek to interview every juror, because the answer is vitally important. Right now it’s hard to know whether the verdict was an outrage against the First Amendment or something quite a bit less than that. In following coverage of the trial, it was clear that prosecutors tried to conflate the two — using Mehanna’s expression of pro-terrorism views to prove he was an actual terrorist.

Boston Globe reporter Milton Valencia tweeted a little while ago, “Judging by verdict, this was more than 1st Amendment decision. Was also centered on Yemen trip. Found guilty of conspiracy to kill.”

Mapping the arrest of journalists at Occupy events


Josh Stearns of Free Press has been tracking the arrest of journalists at Occupy events for the past several months. Now he’s put together a Google map with names, places and, where available, video. An interesting project and a valuable resource.

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

  • A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
  • A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.