Tag Archives: ACLU

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.

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!

 

Misplaced priorities at the Boston Police Dept.

Howard Zinn

Howard Zinn

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News;  Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?

Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.

Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

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.

Steve Kroft’s stunning omission

Anwar al-Awlaki

I wasn’t expecting much in the way of tough questioning last night when I sat down to watch President Obama’s interview with “60 Minutes.” The idea was to revel in the killing of Osama bin Laden. Steve Kroft’s questions — all of which were a variation on “Mr. President, why are you so wonderful?” — were no surprise.

Even so, I was startled when, toward the end of the interview, Kroft asked Obama, “Is this the first time that you’ve ever ordered someone killed?” The president blandly answered that every time he orders a military action, he does so with the understand that someone will be killed.

But what was missing from Kroft’s question and Obama’s answer was the name of Anwar al-Awlaki, a Yemeni-American whom the president ordered killed last year. Al-Awlaki survived a U.S. drone attack on his headquarters in Yemen on Saturday, after the “60 Minutes” interview was recorded. But the targeting of al-Awlaki was hardly a secret — it was even the subject of an unsuccessful lawsuit brought by his father. If Kroft didn’t know that, then he had no business sitting down with the president. If he did, well, why didn’t he say something?

The targeting of al-Awlaki, an American-born radical Islamist, was an extraordinary measure. As Jameel Jaffer of the ACLU, which helped with the lawsuit, has observed:

[T]he United States is not at war in Yemen, and the government doesn’t have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we’ll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow.

Should the United States be trying to kill al-Awlaki? According to this extensively footnoted Wikipedia article, al-Awlaki’s fiery rhetoric was the inspiration for a number of terrorist attacks. In addition, some say he has been involved in planning acts of terrorism and had advance knowledge of the 9/11 attacks. He may, in fact, be a legitimate target.

What troubles me is that it is not widely known that our government has targeted an American-born citizen for death. It’s something that ought to be debated openly, not relegated to an occasional mention in the media. So it’s an opportunity lost when a journalist like Kroft asks a question that is either ignorant or disingenuous, and then allows the president to dissemble without so much as a follow-up.

Did Kroft genuinely not know better, or had he and the folks at CBS News already decided not to press Obama? Either way, it was shocking omission. We could have learned something if only Kroft had bothered to do his job.

Photo via Wikimedia Commons.

A South African scholar is un-Muzzled

Adam Habib

In October 2006, a South African scholar named Adam Habib, a frequent visitor to the United States, was detained at JFK Airport, questioned about his political beliefs and hustled out of the country.

Habib later learned that the Bush administration had decided, on the basis of no apparent evidence, that he had ties to terrorism. More likely his exclusion was based on his outspoken opposition to the war in Iraq.

Habib’s ordeal led me to bestow a 2008 Phoenix Muzzle Award upon then-secretary of state Condoleezza Rice and then-secretary of homeland security Michael Chertoff for exploiting the vast, vague powers they had been granted after the 9/11 terrorist attacks in order to silence a prominent critic. Among other things, their actions forced Habib — who received his Ph.D. from City University of New York — to cancel an appearance at an academic conference in Boston on Aug. 1 of that year.

Now Habib is once again free to travel to the United States. In January, Secretary of State Hillary Clinton signed an order clearing Habib, a sociology professor at the University of Johannesburg, and Tariq Ramadan, a professor of St. Antony’s College, part of Oxford University, in response to a legal action brought by the ACLU and several other organizations.

Habib is currently on a 19-day tour of the U.S. that will bring him to Harvard Law School this Wednesday, an appearance being co-sponsored by the ACLU of Massachusetts. In an interview with the Chronicle of Higher Education, Habib praises Clinton’s decision, but urges the Obama administration to end his predecessor’s policy of “ideological exclusion.” Chronicle reporter Peter Schmidt writes:

“It is absolutely incumbent on the Obama administration to follow through on these tentative steps” and “withdraw all of the practices of ideological exclusion that emerged during this period,” Mr. Habib said. Noting how President Obama was himself shaped by living abroad as a child, Mr. Habib said, “It would be a failing of his own history, his own awakening, of his own historical roots, for him not to follow through on these tentative steps.”

Unfortunately, as is frequently the case in these situations, Habib’s voice was stifled when we most needed to hear him speak.

University of Johannesburg photo via the Chronicle of Higher Education.