(This commentary is also online at the Huffington Post and at the New England First Amendment Center.)
Godwin’s law came to New Hampshire earlier this year. And Speaker of the House Bill O’Brien is retaliating against the Concord Monitor in a manner that may violate the First Amendment.
For those unfamiliar with the phrase, Godwin’s law — first espoused by Mike Godwin, a lawyer and veteran Internet free-speech activist — pertains to the tendency of online debate to devolve into Nazi analogies. As Godwin put it some years ago, “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”
Maybe it’s the Internet effect, but the Nazification of real-world political debate has been under way for some time now. And so it was in mid-May, when state Rep. Steve Vaillancourt, a Republican, grew frustrated with what he saw as efforts by Speaker O’Brien, also a Republican, to silence him. So Vaillancourt directed a toxic remark at O’Brien: “Seig Heil.” He was ejected from the chamber and forced to apologize.
Enter Mike Marland, who draws editorial cartoons for the Concord Monitor. He depicted O’Brien with a Hitler-style mustache, holding a razor. The caption: “If the mustache fits …” You can see the cartoon here, along with a commentary by Monitor editor Felice Belman. Despite having written an editorial taking Vaillancourt to task for his Third Reich-style outburst, Belman defended Marland’s cartoon in defiance of Republican demands that the paper apologize:
When Marland submitted the O’Brien cartoon, there was significant discussion here among the senior editors and our publisher about whether to put it into the paper. In the end, we are not Marland’s censors. He is entitled to his view of the speaker, and his views are his own. This cartoon was harsh, no doubt. But it seemed on point, given last week’s circus. In fact, several Monitor letter writers have made a similar point — in words, if not images.
There matters stood until last Friday, when O’Brien held a news conference in his Statehouse office — and banned two Monitor reporters from attending. Concord Patch editor Tony Schinella, who was among those covering the event, wrote that the reporters, Annmarie Timmins and Matt Spolar, “were told they weren’t invited and were held at bay at the door.” Schinella also shot video of the reporters being turned away (above), and of O’Brien refusing to answer a question as to why he wouldn’t let them in. (Timmins’ own video of the encounter makes for must-see viewing as well.)
O’Brien’s spokeswoman later released a statement: “When the Concord Monitor proves they have chosen to become a responsible media outlet, we’ll be happy to invite them to future media events.”
As the Monitor put it in an editorial, “It’s hard to know which is more startling: a politician attempting to pick his own press corps or the notion that a politician — or a politician’s mouthpiece — gets to decide what constitutes ‘a responsible media outlet.’ Are these people new to this country?”
Now, depending on your point of view, you might think O’Brien’s behavior was either boorish or principled. But perhaps you wouldn’t question his right to do it. Indeed, even the Monitor editorial included this: “There’s nothing requiring O’Brien to let the Monitor into his press conference.”
In fact, though, O’Brien may well have been interfering with the Monitor’s First Amendment right to cover the news.
Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:
A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.
But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.
Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.
The parallel between the Honolulu and Concord situations is pretty obvious, though it’s impossible to say whether a different court would come to the same conclusion nearly 40 years later. In a commentary published by the Monitor, Steven Gordon, a lawyer, argued that O’Brien’s action may well have been an unconstitutional abridgement of the paper’s free-press rights.
I just hope Speaker O’Brien comes to his senses and realizes that the Monitor was well within its rights to run the Hitler cartoon no matter how much he may wish it hadn’t done so. He, on the other hand, has no right to discriminate against a media outlet he doesn’t like.
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The statement of the Monitor (“There’s nothing requiring O’Brien to let the Monitor into his press conference”) surprises me.
But, changing the venue a bit, doesn’t being a member of the White House press corps require being credentialed? Are credentials guaranteed? If the White House refused to issue credentials to “The Daily Caller” or to its reporter Neil Munro (who interrupted Obama’s remarks before a recent press conference), would that be a 1st Amendment violation?
@Stephen: Credentialing reporters for the White House is mainly handled by the press itself. See this.
Thanks, Dan. And according to the internet law of synchronicity comes news today that there will be no repercussions for Munro or Daily Caller based on that incident.
The caselaw goes further than what you cite. While my research is not complete, here is a 4th Circuit case on point, contrary to the Speaker’s position:
569 F.2d 124 (D.C. Cir. 1977)
Robert SHERRILL
v.
H. Stuart KNIGHT, Director, United States Secret Service, et
al., Appellants.
No. 76-1945.
United States Court of Appeals, District of Columbia Circuit
December 15, 1977
[text from page 129]
Rather, we are presented with a situation where the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom. These press facilities are perceived as being open to all bona fide [19] Washington-based journalists, whereas most of the White House itself, and press facilities in particular, have not been made available to the general public. White House press facilities having been made publicly available as a source of information for newsmen, [20] the protection afforded newsgathering under the first amendment guarantee of freedom of the press, see Branzburg v. Hayes, 408 U.S. 665, 681, 707, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), requires that this access not be denied arbitrarily or for less than compelling reasons. See Southeastern Promotions v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the first amendment in assuring that restrictions on newsgathering be no more
Dan – I think your analysis is right on. Official government events can’t pick and choose among media outlets based on their content. That is a clear First Amendment violation.
What concerns me is that usually a politician acting in such a manner was guaranteed to result in said politician being utterly crucified by the media outlet in question, and usually by several other outlets in solidarity.
And usually politicians KNEW that, and would have just enough fear to not try something so blatantly stupid.
Does the Monitor still have the power to destroy O’Brien over something like this? Does the entire NH media have it? If not, then NH as a state will suddenly find itself far poorer for it. God help them all if Monitor goes on the warpath (as they should) and it ultimately leads to nothing.
I hope that if this gets discussed on Beat the Press, that you show a nice big reproduction of the offending cartoon. The story isn’t complete without it.
It’s noteworthy that O’Brien’s banning the Monitor reporters did not relate to the matters to be discussed in the press conference, but was based on his personal feelings about the cartoon and editorial. His reaction shows a major weakness, his inability to develop an effective strategy.
This is nothing new.
I was a reporter in New Hampshire in the 1970s and 80s. Gov. Mel Thomson–State Trooper in tow–padlocked the press room door once when he was displeased with coverage.
We argued that the State House is a public building and he could not pick and choose who entered.
Thomson (no relation) told us there was nothing in state law that required the government to supply a press room. We all had to finish our stories at the nearby Concord Public Library.
I would argue that the speaker doen’t own that office space and has no right to bar folks from a press conference. If he wanted to rent a room at the Ramada Inn for the purposes of holding a news conference and ban the Monitor (I once worked there) that would be his choice to make.
@Candy: Mel Thomson! A name from the past. Actually, I would argue that even if O’Brien held an event on private property, he would still not be able to be selective in his invitations to the press corps. Obviously there’s some gray area that would have to be thought through. He can invite everyone. He can grant an exclusive interview to one news organization. But anything in-between is dubious. One way around it is I imagine there’d be no stopping him from granting a series of one-on-one interviews to everyone except the Monitor.