The First Amendment and Mayor Wu: What press restrictions and vile demonstrations have in common

Previously published at GBH News.

Over the past week, Boston Mayor Michelle Wu has been caught up in two seemingly unrelated controversies. What they have in common is that they touch on important First Amendment issues.

In the first instance, her office sent out a poorly worded advisory asking that reporters keep their distance from homeless people while city workers removed their encampment at Massachusetts Avenue and Melnea Cass Boulevard. In the second, hate-spewing demonstrators have been gathering in front of Wu’s house in Roslindale to protest a requirement that city employees be vaccinated against COVID-19 and that restaurants and other businesses mandate vaccines.

The “media guidelines” were sent out on Jan. 11, the day before the city cleared the area around Mass. and Cass. Reporters and photographers were “advised” to stay 50 feet away from individuals; to refrain from capturing images of individuals’ faces; and to “allow enough space for outreach workers to engage with individuals in private.”

The 50-foot request was later amended to 10 feet — an improvement, but still not enough for reporters to walk up to people and ask if they’d like to be interviewed. “As soon as I saw the guidelines, I emailed the press office and said ‘You can’t tell us how to report,’” Boston Globe columnist and associate editor Adrian Walker wrote in a public Facebook comment.

Kelly McBride, senior vice president and chair of the Craig Newmark Center for Ethics and Leadership at the Poynter Institute, also took a dim view of the advisory.

“I’m always wary when government officials start telling the press how to behave ethically,” she said in an emailed comment. “This may sound shocking, but sometimes government folks are more interested in avoiding accountability for their actions and also making themselves look good than they are in nurturing a free press that serves the public interest.”

Despite liberal use of the word “please,” it’s unclear whether City Hall intended the guidelines to be mandatory; the mayor’s press office declined to comment. In any case, it doesn’t appear that there were any serious efforts at enforcement, as reporters were able to interview homeless people while outreach workers were moving through the area.

“City officials came over to me and asked me not to take pictures of people’s faces, which I wouldn’t have done anyway without permission but I appreciated — they also told me to back up and give space, but mostly I was fine interviewing people,” my GBH News colleague Tori Bedford told me by email. She added: “I think the intention was to prevent the callous treatment of people that occurred last time, but it neglected how the press acts as an accountability agent to witness any callous treatment by the city and it’s not the city’s place to tell us how to do our jobs on a public street.”

As Bedford said, there have been reports of journalists acting insensitively toward homeless people during previous operations at Mass. and Cass. But it’s crucial that the media be allowed access to make sure that city workers are treating people with respect as well. Besides, the encampment was on public property, and attempting to restrict where reporters could go and what they could do was a violation of the First Amendment’s guarantee of freedom of the press.

Paul Bass, the editor and founder of the New Haven Independent, made another important point in a public comment: the guidelines denied agency to the very people the city was attempting to protect. “I agree such rules are outrageous,” he wrote. “They are also patronizing and controlling: homeless people, like anyone else, have the right to decide if they want to tell their story!”

Veteran political analyst Jon Keller of WBZ-TV (Channel 4) said Mayor Wu’s advisory appeared to go beyond anything he had seen from Mayors Tom Menino or Marty Walsh.

“Without knowing for sure, I suspect that they didn’t want any embarrassing feedback from these interactions to be broadcast,” Keller said. “It had the whiff of something drawn up by a PR or a press aide with the mayor’s image and the image of her administration foremost in mind. Now, that may well be their job as they see it, but this is not the right time or situation.”

Not to make too much of this — despite the admonition to keep 10 feet away, the media were not prevented from doing their jobs. But if city officials had problems with the way individual journalists had behaved on previous occasions, they should have dealt with them directly rather than send out a blanket set of rules.

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How much abuse should elected officials have to put up with when they’re at home with their families? In recent days, a small group of bullhorn-wielding protesters has been gathering in front of Mayor Wu’s house in Roslindale to denounce her vaccination mandate. Wu lives in a two-family home with her husband, her two children and her mother.

As Wu tweeted over the weekend, the rhetoric has become increasingly ugly. “They’ve shouted on megaphones that my kids will grow up without a mom bc [because] I’ll be in prison,” she said. “Yesterday at dinner my son asked who else’s bday [birthday] it was bc the AM chant was ‘Happy birthday, Hitler.’”

To have a chance at healing & building community, we can’t keep normalizing hate.

They’ve shouted on megaphones that my kids will grow up without a mom bc I’ll be in prison.

Yesterday at dinner my son asked who else’s bday it was bc the AM chant was “Happy birthday, Hitler.” https://t.co/4I6LwwaPCJ

— Michelle Wu 吳弭 (@wutrain) January 15, 2022

In an ideal world, protesters would restrict their activities to public venues and events and leave political figures alone when they’re home. But social mores are breaking down and incivility is on the rise. And it’s not just Wu. Gov. Charlie Baker’s home in Swampscott has been the site of multiple protests. There has even been speculation that the protests were among the reasons Baker decided not to seek a third term. Certainly Wu’s and Baker’s neighbors didn’t sign up for such abuse.

The challenge is that any action against such demonstrations would clash with First Amendment guarantees of freedom of speech, assembly and petitioning for the redress of grievances. The protesters are, after all, on public streets.

State Rep. Steven Howitt, a Seekonk Republican, has filed legislation to ban demonstrations within 100 yards of an elected official’s home. If such a bill were to become law, there’s little doubt that it would face a constitutional challenge. But it’s also possible that a narrowly drawn statute focusing on noise and intrusiveness would pass muster as a content-neutral time-place-and-manner restriction, according to the noted civil-liberties lawyer Harvey Silverglate.

The alternative would be to move high-profile politicians into official residences away from residential neighborhoods. That would be a shame. It strikes me as a good thing that our leaders live among us, even if the benefit is mainly symbolic. Sadly, that may no longer be possible.