By Dan Kennedy • The press, politics, technology, culture and other passions

Presenting the 14th annual Phoenix Muzzle Awards

The 14th annual Boston Phoenix (and Portland Phoenix and Providence Phoenix) Muzzle Awards are now online and in print, pillorying New England enemies of free speech in Greater Boston, Maine and Rhode Island, from Max Kennedy to Tom Menino. But we begin with some tough words about President Obama.

My friend Harvey Silverglate has written a companion piece on free speech on college campuses.

Sadly, since I first began writing this Fourth of July feature in 1998, finding suitable recipients has only gotten easier.

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Four smart people, two debates


Talking Muzzles tonight with Dan Rea


  1. Michael Pahre

    What is the Supreme Court case you refer to that says that “members of the public, including the press and operations such as Morisy’s, are free to use information provided to them by the government even if that information was supposed to be kept private”?

    Regarding Eliot Cutler and the Maine Commission on Governmental Ethics and Election Practices, I think you should have awarded the latter the Muzzle award, not the former. Maine’s law that categorizes some speech that is “express advocacy” as needing a simple disclaimer is not oppressive; that Dennis Bailey quickly corrected this oversight indicates that it is straight-forward to comply with this law. Nonetheless the commission later fined Bailey. Usually, regulatory bodies like this will not fine or punish a violator if the target quickly corrects a problem when it is pointed out to them. Since Bailey had promptly complied, there was no reason for the commission to issue a fine.

    On Nike t-shirts: Nike wasn’t just trying to sell clothing, they were trying to do so by using double entendres, many of which used drug-related terminology. I think the worry over Menino is overblown: he expressed his personal outrage, but did not threaten to use his elected office or powers against Nike. It sounded more like Menino’s free speech versus Nike’s free speech — which, in my opinion, is a perfectly satisfactory war of words under the first amendment.

    Maybe you deserve a Muzzle next year for trying to muzzle Hizzoner’s free speech rights?

    • Dan Kennedy

      What is the Supreme Court case you refer to that says that “members of the public, including the press and operations such as Morisy’s, are free to use information provided to them by the government even if that information was supposed to be kept private”?

      @Michael: Florida Star v. B.J.F. (1989). The sheriff’s department violated state law by disclosing the name of a sexual-assault victim and making it available in the press room. The Star violated its own policy by publishing the name. Nevertheless, the Supreme Court held that the First Amendment precluded a finding that the Star had broken the law. Justice Thurgood Marshall wrote:

      We hold … that where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order, and that no such interest is satisfactorily served by imposing liability under [the state law] to appellant under the facts of this case.

      And before you seize on the “state interest of the highest order” exception, I should point out that there are no absolutes in First Amendment law. The principle stated by Marshall in his opinion is about as tough as it gets.

      I considered giving the Muzzle to the Maine ethics commission rather than to Eliot Cutler. It was a close call. As I wrote, this was the third time the commission has come up in the Muzzle Awards. My thinking was that the commission, no doubt to the best of its ability, is applying the law as written. Therefore, the Muzzle ought to go to rabbit-eared politicians who would rather outlaw their opponents’ exercise of free speech than fight back.

      As for Menino, you make the same point that Dan Rea made when we debated this last night. It’s a solid argument, but I disagree. The mayor is the most powerful elected official in the city, and when he publicly calls out a company as he did with Nike, there is at the very least an implied threat of official action. Nike pays taxes, must pass city inspections, obtain licenses to operate, etc. There are any number of ways that the city can make life miserable for Nike if Menino does not get what he wants. And he doesn’t need to say a word to his regulatory officers for that to happen.

  2. ben starr

    I’m no fan of the Mayor but i don’t think what he did fits among the list. I’d also note that you used the phrasing “all but demanded” and the Phoenix link on a list of what the mayor might ban next used “demanded”. I don’t think either apply in this instance. I’ve always been under the impression that the best solution for offensive speech is not to ban it but rather chime in with additional protected speech expressing your distaste. Do you think the Mayor should have simply expressed his distaste with the shirts without calling out Nike?

    • Dan Kennedy

      @ben starr: Because folks like you, @Michael Pahre and Dan Rea continue to advance the argument that Menino was merely exercising his own First Amendment rights, I decided to look at the clips again. What I found was that the mayor’s spokeswoman, Dot Joyce, whose salary is paid with taxpayer money, took it upon herself to make Menino’s wishes a matter of official city business.

      For instance, in the Boston Herald of June 25, after Nike had removed the display (probably as part of its normal rotation), Joyce was quoted in the Boston Herald as saying, “It’s good news that Nike has removed the display. It’s inappropriate and we will continue to make sure that all displays in our city do not promote the use of drugs. It is unacceptable and we’re happy they agree.”

      This was a follow-up to quote she gave the Herald for its June 22 edition: “We maintain our position that they’re not appropriate for the city of Boston. They’re not appropriate for anywhere as far as we’re concerned. Nike should be compelled as an athletic apparel manufacturer to promote health and fitness — rather than drug use.”

      Perhaps if Menino had told his staff members that his beef with Nike was a personal issue, and one that they were not to follow up on, I might agree with you. Instead, the mayor’s complaint quickly escalated into an official city issue. If I were the manager of Niketown, I’d be damn worried about the next time a city inspector comes around for a look-see.

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