Godwin’s law, the speaker and the Concord Monitor

Click to watch video at Patch.com

(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.