The 2018 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Previously published at WGBHNews.org.

It’s all about Trump. And so it should come as no surprise that the 2018 New England Muzzle Awards have taken on a distinctly orange hue, singling out — among other offenses — thuggish attempts by President Donald Trump and his minions to suppress speech they found embarrassing.

One of those coveted Muzzles is being presented to the president himself, who, through his lawyer, Michael Cohen, threatened a member of the Harvard Lampoon with expulsion over a harmless prank. The other goes to former Trump communications director Anthony Scaramucci, who raised the specter of a libel suit against a student who’d written a critical op-ed piece about The Mooch in the Tufts campus newspaper.

On a considerably lesser scale, former president Barack Obama should be on the lookout for a golden Muzzle in his mailbox as well. Earlier this year, Obama (or someone he was associated with) demanded that his remarks to several thousand people at a Boston conference on sports statistics, of all things, be kept off the record. Team Obama’s action was as absurd as it was inappropriate — and, as they learned, unenforceable as well.

Also: The 2018 Campus Muzzle Awards:
Four Institutions that Dishonored Freedom

Of course, the Muzzles encompass far more than presidential politics. This year’s winners range from Boston Police Commissioner Bill Evans, who expressed unseemly pleasure that right-wing activists couldn’t be heard at a “Free Speech Rally” they had organized last August, to Massachusetts Attorney General Maura Healey, whose oft-stated commitment to open government is contradicted by her censorious interpretation of the state’s public-records law. For good measure, we single out two Rhode Island legislators who are pushing a priggish piece of legislation that has become known as the “internet porn tax.”

This year’s Muzzles are being awarded against a backdrop of fear and hatred whipped up by President Trump, whose cries of “fake news” have served to delegitimize the press among his followers and to undermine the First Amendment. Earlier this year it was learned that the White House had obtained the phone and email records of a New York Times journalist in secret, which denied her an opportunity to fight that order in court. More broadly, Trump triggered a humanitarian catastrophe with his policy of separating the families of undocumented immigrants when they try to enter the United States, calling into question the nation’s commitment to the rule of law. He eventually backed down, but the fate of the children who were taken away from their parents is still unclear — especially given his subsequent remark that undocumented immigrants should be turned away at the border without due process.

The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the sixth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.

The envelopes, please.

Bill Evans 
Boston’s Police Commissioner says he’s glad that right-wing speakers couldn’t be heard

Boston Police Commissioner Bill Evans had a huge challenge on his hands last August. A small group of right-wing activists had scheduled a “Free Speech Rally” on the Boston Common. Barely a week earlier, an anti-racism protester had been killed at a demonstration of white nationalists in Charlottesville, Virginia. President Trump pouredgasoline on the fire by claiming that there were “very fine people on both sides” in Charlottesville.

So passions were high in Boston. Some 30,000 to 40,000 counter-protesters marchedfrom Roxbury to the Common, overwhelming the handful of speakers who had gathered on the Parkman Bandstand to express their views. The counter-protest was more rolling celebration than angry crowd, and the police for the most part were professional and friendly. Police Superintendent Willie Gross even posed for selfies with the marchers, Charles Pierce reported at Esquire.com.

The only issue was that the right-wingers couldn’t be heard. They had come without much of anything in the way of sound equipment, and the police insisted that the counter-protesters keep their distance. “It wasn’t my fault that the ‘free speech’ people basically showed up with a minor amplifying device,” Evans later said in an appearance on WGBH Radio’s Boston Public Radio.

Fair enough. But Evans (a 2017 Muzzle winner) also told Zeninjor Enwemeka of WBUR Radio: “We had a job to do. We did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what? If they didn’t get in, that’s a good thing because their message isn’t what we want to hear.”

Oops. With those words, Evans seemed to confirm concerns voiced by civil libertarians that the security measures put in place by the Boston Police were designed at least in part to prevent the right-wing speakers from being heard.

The New England First Amendment Coalition, the ACLU, the Society of Professional Journalists, and other organizations later issued a statement demanding that the city provide more media access to speakers at future demonstrations. The role of police officers at such events, after all, is to ensure public safety — not to censor unpopular speech.

City of Cambridge 
Tells political candidate to remove an offensive sign mocking Sen. Elizabeth Warren

Several attempts to crack down on political signs caught our attention this year. According to the Portland Press Herald, a woman in Rockland, Maine, was threatened with jail if she refused to remove her oversized signs in support of President Trump. In Gilmanton, New Hampshire, the Concord Monitor reported that residents who had put up signs critical of the select board were told they violated local regulations and that they would be fined if they didn’t take them down.

The most Muzzle-worthy of these disputes, though, involves independent Senate candidate Shiva Ayyadurai, who was ordered to dismantle an wildly offensive sign on his company’s Cambridge property that criticized Democratic Sen. Elizabeth Warren. The sign, officials told him, violated the city’s building code.

According to The Boston Globe’s account of the dispute, “Ayyadurai’s beef is that the city never complained until the sign — which had originally only touted his candidacy — was changed last June [2017, that is] to display a photo of him and Warren, whose image is given a Native American headband. The words state: ‘Only a REAL INDIAN Can Defeat the Fake Indian,’” a reference to the long-running controversy over Warren’s claim to Native American heritage. Thus our Muzzle goes to the City of Cambridge for a flagrant instance of attempted censorship.

Ayyadurai sued, which led the city to back down, according to the Associated Press. But it’s long past time for public officials everywhere to get the message that political speech deserves the highest First Amendment protection — and that local ordinances that regulate signs on the basis of size, placement, and the like are really little more than an attempt to squelch debate.

Donald Trump 
A Harvard Lampoon prank results in a threatening phone call aimed at intimidating a student

You might think that it would be difficult for a national figure with no ties to New England to become a two-time Muzzle Award winner. But President Donald Trump managed the trick starting in 2016 when, as a candidate, he was singled out for a threatening letter one of his lawyers sent to a Cambridge T-shirt company that had set up a web domain called StopTrump.us. And now he’s back in the winner’s circle — once again for issuing legal threats aimed at shutting down speech.

This time the attempt at intimidation came from none other than his legally imperiled former lawyer, Michael Cohen. We could have awarded the Muzzle to him. But we need Trump-related clickbait as much as the next news organization, so the coveted statuette will be presented to the president himself.

Here’s what happened: According to a story broadcast by CBS News’ “60 Minutes” in April, a Harvard Lampoon staff member named Tom Waddick, pretending to be with the student newspaper, the Harvard Crimson, contacted the Trump campaign in 2015 and said the Crimson was planning to endorse Trump. “This seems like something that Mr. Trump would be very interested in,” Waddick said he was told. So he and other students visited Trump in Manhattan, lugging with them the massive “president’s chair,” which they had borrowed (that is, stolen) from the Crimson so that Trump could be photographed sitting in it. Trump obliged, and he and the students gathered around for picture, all of them posing with Trumpian thumbs up.

Mission accomplished — or so they thought. Campaign officials figured out they’d been punked. And before the students could write up their escapades, Waddick got a call from an enraged Cohen, who told him, “I’m gonna come up to Harvard. You’re all gonna get expelled. If this photo gets out you’ll be outta that school faster than you know it. I can be up there tomorrow.”

Waddick, understandably, said he found the experience “terrifying.” He even gave in to Cohen’s demand that he send him his student ID, explaining, “I was so afraid that if I didn’t, he might actually be crazy enough to fly up here.”

Waddick heard nothing further from the Trump campaign. The Crimson later published a story on the Lampoon’s exploits, which included the offending photo. But imagine: The future president unleashed his personal attorney on a bunch of students and threatened them with expulsion because they had made his client look silly.

Maura Healey 
A progressive icon sides with those in power when it comes to releasing public records

A rising star within the Massachusetts Democratic Party, Attorney General Maura Healey has established herself as a progressive and a leader of the #Resistance to President Trump. But she has sometimes taken a hardline stand on free-speech and open-records issues. Three years ago she won a Muzzle Award for defended a 1946 state law criminalizing political lies aimed at influencing an election. And now she is being presented with her second, this time for fighting the release of public records.

Her nemesis is Boston Globe reporter Todd Wallack, whose relentlessness in pushing for the public’s business to be conducted in public led to his winning the Michael Donoghue Freedom of Information Award from the New England First Amendment Coalition earlier this year. In May, Wallack weighed in with a detailed report on Healey’s less-than-stellar record on open government.

Wallack’s most startling finding: Healey’s office had upheld a ruling by the Worcester district attorney that records pertaining to the 1951 murder of a state trooper should not be made public. Healey’s decision reversed a ruling by Secretary of State Bill Galvin’s office and denied a friend of the murder victim the opportunity to follow up some leads on his own. The friend has since died.

Wallack documented numerous other examples of Healey’s penchant for siding with the secret-keepers, including her decision to appeal an order that the state police provide the Globe with dates of birth for state troopers. That would have made it possible for the paper to examine the driving records of officers who had been involved in motor-vehicle accidents. Robert Ambrogi, a First Amendment lawyer and the director of the Massachusetts Newspaper Publishers Association, told Wallack: “I would expect more based on the promises she has made about open government.”

Healey, of course, defended her performance, telling Wallack, “I think that we have a strong track record that shows we are committed to transparency in government and enforcement of public-records laws.” She added that there are sometimes legitimate reasons to withhold records. But a 67-year-old murder case surely isn’t one of those instances.

Healey also walked away from an opportunity to make the public-records law stronger. As WGBH News reporter Isaiah Thompson reported in May, Healey rejected a proposed ballot measure by a citizen activist that would have brought the state legislature within the purview of the law — an idea supported by good-government groups such as the Pioneer Institute, Common Cause and the ACLU.

The state attorney general’s office is known as a political graveyard for those with higher ambitions. Martha Coakley, Scott Harshbarger, and Frank Bellotti are just three who were thwarted in their attempts at higher office. Healey is thought to be ambitious herself. She might want to consider whether her relationships with other public officials, including law enforcement, are more important than the cause of open government.

Anthony Scaramucci 
Threatens to sue a student for expressing his opinion about The Mooch’s role at Tufts

Last November, a graduate student at Tufts University’s Fletcher School of Diplomacy named Camilo Caballero noted that the foul-mouthed financier Anthony Scaramucci, who holds the record for the shortest stint of any Trump White House official, was a member of the school’s board of advisers.

In a toughly worded op-ed piece for The Tufts Daily, Caballero wrote that Scaramucci had “sold his soul” to join the Trump administration and had used his social-media presence to play footsie with Holocaust deniers. (A poll published on Twitter by The Scaramucci Post asked followers, “How many Jews were killed in the Holocaust?” The incendiary tweet was quickly deleted, and Scaramucci blamed it on an underling while denying there was any anti-Semitic intent.) For good measure, Caballero called The Mooch “irresponsible, inconsistent, [and] an unethical opportunist,” and urged students to sign a petition calling on Scaramucci to be removed from the board.

Scaramucci’s response was to sic a lawyer on Caballero, threatening to sue him for libel on the grounds that he had made “false and defamatory allegations of fact.” Fletcher professor Daniel Drezner — who took Caballero to task for calling on students not to attend an open forum with Scaramucci that had been organized by school officials — nevertheless askedin a Washington Post commentary: “Who in the hell looks at a student op-ed in a student newspaper and decides to sue the student and the newspaper?”

Under well-established First Amendment doctrine, statements of pure opinion are a form of protected speech, but statements of fact may be found libelous if they are false and defamatory. Certainly it would have been an interesting legal exercise if Scaramucci’s lawyers had sought to establish that he had not, factually speaking, sold his soul and was therefore entitled to compensation. But Scaramucci subsequently stepped down as a Fletcher adviser, the lawsuit was never filed, and The Tufts Daily, to its credit, kept Caballero’s op-eds on its website.

“There is a dark, unhappy side to the absurdity of this story,” Caballero wrote in The Boston Globe. “What began as an effort to express my opinion, and support a student petition, made me a target. A small story became a media firestorm in today’s hyper-charged political environment.”

The danger was that Scaramucci would get away with his attempt to intimidate student journalists into silence. Fortunately that didn’t happen at Tufts.

Colleen Garry 
Mass. legislator files bill to ban political lies — and thumbs her nose at the state Constitution

You just can’t keep a bad idea down.

Three years ago the Massachusetts Supreme Judicial Court ruled unanimously that a state law prohibiting false political speech violated the state constitution. Justice Robert Cordy, since retired, wrote that the law in question “cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the Commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system.”

You’d think that would settle the issue. Last fall, though, state Rep. Colleen Garry, a Dracut Democrat, filed a similar piece of legislation. “I have heard that my bill to penalize candidates or groups that providing false or misleading information to voters is a violation of the free speech provision of the Constitution,” Garry wrote in an opinion piece for The Boston Globe. “But I think our forefathers would be rolling over in their graves if they saw the state of politics today. The hate, lies, and vitriol that occurs from the highest office in the country on down are embarrassing.”

What’s truly embarrassing, though, are elected officials who fail to understand or accept the wisdom of U.S. Supreme Court Justice Louis Brandeis, who wrote in the 1927 case of Whitney v. California that the best solution to false speech is “more speech, not enforced silence.” As Globe columnist Jeff Jacoby put it: “A ‘truth in advertising’ standard for political campaigns may sound appealing, but any attempt to impose such a rule would immediately degenerate into censorship and retaliation.”

Garry’s bill was sent to the legislative graveyard of a study committee earlier this year, from which we can only hope it will not emerge. The forefathers Garry invokes wrote the First Amendment to protect political speech above all else. And in politics, as in many other endeavors, truth is in the eye of the beholder.

Barack Obama 
His views on sports statistics were deemed off the record at an MIT-sponsored event

It’s not difficult to imagine circumstances under which a former president might want to speak off the record. At a foreign-policy seminar at which he could say something critical about American allies? Of course. At an event where he plans to speak candidly about his successor? Absolutely. At a conference about sports statistics? Yes — uh, wait, what was that again?

In fact, it’s true. This past February, former president Barack Obama spoke at the MIT Sloan Sports Analytics Conference, held at the Boston Convention and Exhibition Center. Incredibly, his appearance before 3,500 people was entirely off the record. After it was held, I asked MIT officials whether Obama or someone else was responsible for the ground rules and received the same boilerplate nonresponse they sent out before the event:

“During President Obama’s panel the following will not be permitted, without exception: photography, video recording, streaming, and social media posting-including the use of Twitter, Facebook, Instagram, Snapchat, and other platforms. Following the panel, the sharing or reporting of its contents on public platforms, including social media, will not be permitted.”

With nothing more than that to work with, we will award the Muzzle to Obama. Whether or not the ground rules were set at his request, it was unseemly for him to be associated with such foolishness.

As you might have imagined, Obama said nothing noteworthy anyway. Yes, of course, Obama’s remarks leaked, and we learned from Reason.com that the former president had shared a few anecdotes, expressed some mild concerns about Google and Facebook, spoke up for science, and talked about how much he likes basketball.

My former Boston Phoenix colleague Jason Gay put it this way in his Wall Street Journal column: “Sloan, MIT, ESPN, President Obama, his office and all involved with this conference should be embarrassed by this off-the-record admonition.” Indeed.

The Overzealous Security Guard 
Officer in Springfield orders newspaper columnist to delete photo of a public building

“I like to walk.” So begins Patrick Johnson’s Jan. 8 column in The Republican of Springfield. Johnson also likes to take pictures. Several months earlier he had been walking the streets of Springfield on a drizzly day when he decided to take a photo of the historic Springfield State Office Building. He pulled out his phone, clicked — and heard someone say, “Excuse me, sir!”

As Johnson described it, a uniformed security guard approached him, told him it was against the law to photograph state buildings, and ordered him either to turn over his phone or delete the photo while the officer watched. Johnson chose to hit the delete key, writing: “He was apparently unaware that deleted photos on a iPhone can be easily recovered.”

Although one could question the officer’s training or lack thereof, there is really no higher authority who can be blamed for this travesty. So the Muzzle goes to The Overzealous Security Guard. You might say he was an ordinary employee who wrongly believed he was just doing his job. But the sort of petty harassment Johnson experienced that day — harassment that deprived him of his First Amendment right to take a photograph of a public building in a public place — should not go unremarked-upon.

Johnson decided to follow up. An official at the Department of Capital Asset Management and Maintenance (DCAMM), which manages the building, failed to respond to Johnson’s questions. That led Johnson to file a Freedom of Information Act request, which was also ignored. The governor’s office kicked the question back to DCAMM, which responded, finally, that The Overzealous Security Guard had been in the wrong. Problem solved.

But as the ACLU’s William Newman told Johnson: “You’re a reporter. You said, ‘This can’t be right,’ and then you made a phone call. And you knew who to call and you stuck with it. The average citizen would say, ‘I’ll just delete the photo,’ and a tiny bit of your freedom goes swirling down the drain.”

Maine Democratic Party 
Offended by anonymous website, the party files a complaint with the state ethics commission

Anonymous political speech has a long, noble tradition in this country. As the Electronic Frontier Foundation, a leading civil-liberties organization, reminds us, the authors of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay, all remained anonymous in making the case for the Constitution. The U.S. Supreme Court ruled in the 1995 case of McIntyre v. Ohio Elections Commission that “anonymity is a shield from the tyranny of the majority.”

The Maine Democratic Party, though, ignored these admonitions when a conservative website called the Maine Examiner attacked Democratic politicians — most notably Ben Chin, who lost his campaign for mayor of Lewiston after the Examiner claimed he had said in an email that the city’s voters were a “bunch of racists.” (The quote, though accurate, was reportedly taken out of context.)

Democrats suspected that the anonymous Examiner was really a Republican front, and they filed a complaint with the state ethics commission. According to The Boston Globe, the Democrats wrote, “We are deeply concerned with the dangerous precedent this type of anonymous communication could set in Maine.” The commission has the power to impose fines or refer cases for prosecution.

As it turned out, the Examiner really was tied to the state’s Republican Party. Jason Savage, the party’s executive director, conceded that he had set it up, claiming he had done it on his own time and not in his capacity as a political activist. The commission, fortunately, voted 3-2 to dismiss the Democrats’ complaint.

That’s not to say the Democrats’ anger had no basis. As the Portland Press Herald pointed out in an editorial criticizing the commission’s decision, the GOP would have been required to disclose its involvement in a mailing, a print advertisement, or on television or radio. “But, apparently, political operatives can send anything they want over the internet as long as they make it look like journalism,” the editorial said, “and the paid staffer who wrote it swears he did it in his free time.” And there’s no question that the explosion of dark money in politics has created an enormous challenge for democracy.

Still, that’s no reason to try to censor speech by forcing its anonymous creators to reveal their identities. We’re sure that Publius would agree.

Frank Ciccone and Hanna Gallo 
R.I. legislators propose ‘Internet Porn Tax,’ making no one except grateful headline writers happy

Talk about a terrible idea whose time has not come. Back in March, Rhode Island state Sens. Frank Ciccone and Hanna Gallo, Democrats from Providence and Cranston, respectively, proposed legislation that has become known by opponents as the “internet porn tax.” It is every bit as dumb as it sounds.

According to The Providence Journal, internet service providers in Rhode Island would be required to block “sexual content and patently offensive material” before it enters the home. Anyone who wished to view such material would have to pay a $20 fee to have it unblocked.

Now, it should be pointed out that the vast majority of this content is constitutionally protected. Material that is so offensive that it is considered obscenity, as well as child pornography, may land its purveyors in prison, and thus is not as easily found on the internet as Ciccone and Gallo might imagine. Their bill would target everyday pornography of the sort that you might want to keep away from your kids, but that is otherwise of little concern.

Besides, as the ACLU of Rhode Island points out, internet blocking software does not work very well, and even when properly implemented could end up filtering out “Netflix, sex education sites, [and] the text of James Joyce’s ‘Ulysses.’”

Phil Paleologos, a talk-show host at WBSM Radio in New Bedford, calls the internet porn tax a “brainless and unconstitutional idea,” adding: “They must have a lot of idle time on their hands for the Rhode Island legislature to be introducing legislation that would charge viewers 20 bucks to look at adult material. So long to the days of the 25 cent peep show!”

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