Social justice or free speech? The New York Times offers an in-depth look at the struggles inside the ACLU. My friend and occasional collaborator Harvey Silverglate is among those interviewed.
Category: Civil liberties Page 1 of 2
Reporting by DigBoston and the Boston Institute for Nonprofit Journalism helped stave off a serious violation of civil liberties — at least for now.
Dan Atkinson reported on March 25 that “city officials are quietly looking to hire consultants to maintain a linked network of more than 1,000 video cameras across the Metro Boston area, with remote access shared across nine cities.”
The move came, Atkinson noted, even as Boston City Council members were pushing for greater oversight of surveillance technology.
On Friday, The Boston Globe reported that Acting Mayor Kim Janey will not move forward with the plan, though she declined to kill the proposal altogether. The Globe’s Danny McDonald quoted a Janey spokeswoman as saying that she “is directing her staff to take a fresh look at this request…. Mayor Janey remains committed to strengthening public safety, transparency and accountability for the City of Boston.”
So kudos to DigBoston, the city’s last alternative weekly, and BINJ. And if you’d like to get a better sense of how the two organizations work together, check out this story from November 2019 by Adrian Ma at WBUR.org.
The public square has long since gone private. As far back as 2003, we bestowed a New England Muzzle Award upon a mall that ordered a 60-year-old customer arrested and charged with trespassing because he refused to remove his antiwar T-shirt — a T-shirt he’d bought at said mall.
These days, though, the idea that privately owned shopping centers have superseded the village common seems almost quaint. The public square has gone virtual. Unaccountable internet companies control our discourse and censor our voices for reasons that can seem both absurd and mysterious.
We live in a time in which YouTube restricts access to a pro-Israel video made by the famed Harvard law professor Alan Dershowitz. In which the Museum of Fine Arts’ Instagram account runs afoul of an anti-nudity rule that applies not just to pornography but to art. And in which the Boston Police Department proposes using sophisticated software to monitor our activities on social media — for our own good, of course. The BPD backed down, but you can be sure that won’t be the last we hear of it.
It seems somehow appropriate that on this, the 20th anniversary of the Muzzle Awards, assaults on freedom of expression are taking a technological turn. But there are still plenty of instances of old-fashioned suppression — such as a publicly funded charter school in Malden whose ban on hair extensions affects black female students almost exclusively; Maine Gov. Paul LePage, who has refused to turn over public records about his support for states seeking to discriminate against same-sex couples and transgender youth; and a New Hampshire publisher who censored information about his own newspaper’s real-estate dealings.
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 fifth 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.
YouTube: The Internet Giant Censors Videos By Alan Dershowitz And Others
Harvard Law School professor Alan Dershowitz’s staunchly pro-Israel views are well known. But if he had to rely on YouTube to spread his message, he might find himself crying in the wilderness.
Last October, Hiawatha Bray reported in The Boston Globe that educational videos featuring Dershowitz and several other speakers had been restricted by YouTube, an internet giant that, in turn, is owned by Google, an even larger internet giant. The videos were produced by Prager University, an educational service begun by Dennis Prager, a conservative radio talk-show host.
As Bray noted, none of the videos included any foul language, violence, or sexually explicit content. Nor could it be determined why they were suppressed. Had the videos somehow run afoul of Google’s notoriously opaque algorithms? Had someone flagged the content as objectionable?
Not that it was especially difficult to watch the videos. The content was blocked only for users who had turned on YouTube’s “restricted” mode, which, according to the website, “hides videos that may contain inappropriate content flagged by users and other signals.” All anyone would have to do is turn it off. Still, it sent a signal that there was something wrong with what Dershowitz and the others were saying.
In a follow-up piece for National Review, Prager wrote that 21 videos had originally been restricted, and that five had been restored. The topics included radical Islam, abortion rights, and a defense of police against charges of racism. “Obviously, … the explanation is not algorithms that catch violence and sex,” Prager wrote. “Rather, Google/YouTube doesn’t want effective (each video has at least 1 million views) conservative videos.”
He added that Dershowitz’s video “Israel’s Legal Founding” had been restored because of negative publicity. If it was, it was later blocked again — as I discovered when I tried accessing it in restricted mode recently.
Google, like Facebook, has enormous power and influence, and has become far more than a corporation with its own agenda and interests. It’s a place where we spend a significant amount of our lives. It’s long past time for Google to recognize its free-speech obligations.
Bill Evans: The BPD Commissioner’s Officers Choose Surveillance Over Liberty
In the never-ending struggle between security and liberty, it is the job of the Boston Police Department to err on the side of security. And it is our job to push back. Thus has Commissioner Bill Evans earned a Muzzle for allowing his officers to infringe on the free-expression rights of protesters.
According to The Boston Globe, this past March, members of an organization calling itself the Keep it Real 100 for Affordable Housing and Racial Justice showed up at a board meeting of the Boston Planning and Development Agency to complain about the lack of affordable housing in a development plan for the Forest Hills-Jackson Square area. Officers began video recording some of the protesters, creating what some witnesses said was an atmosphere of intimidation.
Officer Rachel Maguire, the BPD spokeswoman, compared the situation to the right that citizens have to record officers, and said such recording often takes place at large gatherings such as the Boston Marathon and outdoor demonstrations. Needless to say, though, there is a considerable power differential between police officers and citizens. Citizens recording officers simply cannot be compared to officers recording citizens. And a public meeting in City Hall is a very different matter from a huge outdoor gathering.
Fortunately, the BPD backed down from yet another attempt to monitor people exercising their right to free expression — a proposal to sift through people’s social-media activities, opposed by the ACLU of Massachusetts. But surveillance of activities protected by the First Amendment is no way to protect public safety. Evans needs to find a better solution.
Jim Konig: A Publisher Who Believes That All The News About His Newspaper Isn’t Fit To Print
A community newspaper has an obligation to be open and transparent about its operations. After all, the local paper often enjoys a near-monopoly on news. If its owners choose to suppress important information, there is virtually no other place to learn about it.
So when Roger Carroll, the executive managing editor of The Telegraph of Nashua, New Hampshire, resigned last fall, eyebrows were understandably raised. In a radio interview, Carroll told Nancy West, founder of the nonprofit news organization InDepthNH, that he quit after publisher Jim Konig ordered him to delete parts of a story about the paper’s move to new headquarters in downtown Nashua.
According to the print version of the article, The Telegraph’s new building was purchased for $650,000 and had an assessed value of $1.8 million. Those details, as well as the fact that the paper is owned by Ogden Newspapers of Wheeling, West Virginia, were removed from the online version.
Carroll said Konig told him the order to delete those facts had come from West Virginia. But Konig wins the Muzzle, as he refused an opportunity to clarify matters when reached by InDepthNH and the New Hampshire Union Leader.
“I thought this kind of censorship showed a staggering disrespect to the role of the newsroom and to the Telegraph’s readers,” Carroll told West in a follow-up interview. Reached by the Union Leader, Carroll added, “It felt like censorship — that is what it felt like.”
Konig, meanwhile, has moved on, and Carroll is now working for Vermont’s Rutland Herald. “Leaving those folks behind was very hard,” Carroll told the investigative news site VTDigger about his decision to quit his job at The Telegraph. “But at the end of the day I had to be able to look in the mirror.”
Mystic Valley Regional Charter School: Its Prohibition Against Hair Extensions Is Racially Discriminatory
A school’s dress code includes a provision that is written in seemingly neutral language, but in practice affects black students while having little impact on white students. That’s discrimination, and it’s not a difficult concept to understand.
Unless you are part of the leadership at the Mystic Valley Regional Charter Schoolin Malden, which has grudgingly, and only temporarily, suspended its ban on hair extensions under pressure from Massachusetts Attorney General Maura Healey.
The taxpayer-supported school, which serves Malden and several surrounding communities, has an extensive dress and grooming code that school officials say is aimed at preventing more affluent students from flaunting their wealth. But the families of some black female students argue that long braids, sometimes supplemented with extensions, are an expression of cultural pride.
Black students with long braids and dreads were taken to the office and inspected to see if they were wearing extensions. Punishment was meted out, including detention and suspension from activities such as athletics and the prom. White students with dyed hair were reportedly not subjected to such treatment. Despite Healey’s investigation, protests, and complaints from the ACLU and the NAACP, the school has backed down only partially and with great reluctance, displaying an unusually obtuse sense of racial insensitivity.
A letter released by the school after the trustees voted to suspend the policy read in part: “Some have asserted that our prohibition on artificial hair extensions violates a ‘cultural right,’ but that view is not supported by the courts, which distinguish between policies that affect a person’s natural ‘immutable’ characteristics and those that prohibit practices based on changeable cultural norms.”
As my “Beat the Press” colleague Callie Crossley recently wrote in criticizing Mystic Valley: “For black women, hair is a cultural flashpoint, never as simple as ‘it’s just hair.’ Those of us who wear our hair in afros, twists, locks or braids are often subject to unsolicited commentary, sometimes overtly racist.”
Free expression covers a wide variety of activities, including hair and dress. It would be bad enough if Mystic Valley’s policy were not racially discriminatory. But it is, and that makes it indefensible on any grounds.
Cardno ChemRisk: The SJC Sees Through Its Attempt To Use Libel As A Tool Of Intimidation
The libel laws are intended to give people and organizations a chance to fight back against false, defamatory statements. In the wrong hands, though, libel can be wielded by the powerful as weapon to harass critics.
Such was the situation that two environmental activists found themselves in after they wrote an unpaid article for The Huffington Post. The 2013 article, by Karen Savage, who at the time was a Boston middle-school teacher, and Cherrie Foytlin of Rayne, Louisiana, claimed that a controversial consulting company called Cardno ChemRisk had ties to the oil industry. Those ties, they said, compromised the company’s ability to conduct a study as to whether workers involved in the cleanup of the 2010 Deepwater Horizon explosion were exposed to harmful levels of hazardous airborne substances.
ChemRisk wins a Muzzle Award for filing a libel suit against the two women — something The New York Times notes that it did not do even when tough reporting on the company by The Wall Street Journal in 2005 became a storyline in the environmental thriller “Erin Brockovich.” The Times article suggested that ChemRisk was more comfortable taking on two unknown activists than the powerful Journal, although a lawyer for the company denied it.
In February of this year the Massachusetts Supreme Judicial Court threw out the lawsuit, essentially agreeing with the two women, who had invoked the state’s anti-SLAPP law (Strategic Litigation Against Public Participation), that ChemRisk had sued solely in order to silence and intimidate them. According to the website Law360, the SJC ruled that ChemRisk’s claim was “devoid of reasonable factual support or arguable basis in law.”
Despite the victory, the lawsuit may have served its purpose by warning other activists of the consequences they might face if they take the risk of speaking up.
Bill Gardner: New Hampshire’s Secretary Of State Keeps The Absurd ‘Ballot Selfie’ Ban In The News
Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.
In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?
A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.
Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.
Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.
The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”
Paul LePage: Maine’s Governor Refuses To Release Records About His Right-Wing Crusades
You’d think that Maine’s Republican governor, Paul LePage, would be proud to share information about assistance he gave to other states in their quest to squelch same-sex marriage and transgender rights. Apparently not. Because in May, the Portland firm Andrew Schmidt Law had to file a lawsuit under the state’s Freedom of Access statute following what it said was a failed six-month quest to obtain records related to LePage’s out-of-state political activism.
Also sought were records pertaining to LePage’s decision last fall to pull out of the federal government’s refugee resettlement program.
According to the Portland Press Herald, LePage supported Mississippi officials in their bid to overturn a federal judge’s ruling that public employees could not refuse marriage licenses to same-sex couples. LePage also signed on to a lawsuit filed by 10 states after the Obama administration ordered public schools to stop discriminating against transgender students with regard to bathroom and locker-room access.
LePage is a notorious homophobe. Last year The Advocate, an LGBT publication, posted some NSFW comments LePage made to a state legislator in which he defended himself against charges that he’s a racist by going off on a vicious gay-bashing rant.
As for the public records sought by Andrew Schmidt Law, Peter Mancuso, a lawyer with the firm, told the Press Herald that the governor’s office had not turned them over despite promising to do so by March. Nor did the LePage administration respond to several email requests from the paper seeking comment.
Instagram: The Museum Of Fine Arts Runs Afoul Of The Photo-Sharing App’s Ban On Nudity
YouTube is not the only internet behemoth upon whom we are bestowing a Muzzle Award. So is Instagram, the photo-sharing app owned by Facebook. As with YouTube and its parent company, Google, the Instagram example highlights the erosion of freedom that can occur when our public discourse is turned over to unaccountable corporations.
The Boston Globe’s Malcolm Gay reported in April that Instagram had removed three images of nude models posted by the Museum of Fine Arts to promote an exhibit of photographs by Imogen Cunningham. The images violated Instagram’s one-size-fits-all terms of service, which prohibit photos of female nipples. Similar cases involving the Philadelphia Museum of Art and New York’s Metropolitan Museum of Art were also reported.
“I’m stunned. These images are so subtle and beautiful and so abstract,” MFA photography curator Karen Haas told the Globe. “They’re all about shapes — about turning the body into something that’s really confounding and difficult even to read as a body.”
But though the Muzzle goes to Instagram, surely a Muzzle Jr. is in order for the Globe. Because the artwork it used to illustrate the story was itself a censored, G-rated version of Cunningham’s photos. As my “Beat the Press” colleague Emily Rooney ranted several days after the Globe’s story was published, “They ruined their own story by doing the exact same thing they were accusing Instagram of doing. It was embarrassing, I thought.”
New Haven Police Department: A Photojournalist Is Arrested And Charged Following ‘A Ten-Second Misunderstanding’
For years, police officers in New Haven have struggled with the idea that journalists and ordinary citizens have a First Amendment right to video-record and photograph their interactions with the public. In 2011 I accompanied Paul Bass, the editor and founder of the online New Haven Independent, as he covered a training session for officers following some egregious violations of citizens’ rights, which I wrote about in my book “The Wired City.”
Sadly, the New Haven Police Department still doesn’t get it. Last December, Independent reporter David Sepulveda was arrested and charged with two misdemeanors — interfering with police and third-degree trespassing — after he took photos of a pressure cooker suspected of being a bomb (it wasn’t) and didn’t vacate the scene quickly enough when ordered to do so.
“We recognize that police have legitimate concerns when setting a perimeter around a scene and urge journalists to respect those boundaries, but an arrest is extreme when less draconian remedies would have sufficed,” the Connecticut chapter of the Society of Professional Journalists said in a statement.
In an opinion piece, Bass apologized and conceded that Sepulveda, 64, should have been more responsive and polite in his dealings with the police. But there was no excuse for their subsequent actions, which, according to Bass, included confiscating Sepulveda’s camera and attempting to seize its memory card; wrongly asserting that he had walked into a blocked-off area; and claiming that they didn’t know he was a reporter even though he was wearing a press tag around his neck. As Bass wrote, the police “turned a ten-second misunderstanding into a criminal charge.” He added: “The police had reason to be angry. They didn’t have good reason to handcuff, detain, and arrest a reporter.”
The officer who arrested Sepulveda and the supervisor who seized his camera were cleared by internal-affairs investigators. And so it goes — until the next time the city’s unchastened police encounter someone with a camera and an attitude.
Peter Kilmartin: Rhode Island’s Attorney General Clashes With Governor Over Revenge Porn And Curt Schilling
So-called revenge porn — sexually explicit photos posted on the internet as a form of harassment — is a serious offense. But Rhode Island Attorney General Peter Kilmartin has taken an unserious approach to dealing with it, filing a bill in 2016 so unconstitutionally broad that it was vetoed by Gov. Gina Raimondo, a fellow Democrat. He then turned around and filed it again.
According to The Westerly Sun, Raimondo objected to Kilmartin’s proposal because it “could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, [the legislation] does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.” Kilmartin, playing to the cheap seats, responded by saying “it is a disgrace that the Governor would put the interests of Hollywood elites before that of Rhode Island victims of this horrendous crime that has lifelong impact.”
But as Steven Brown, executive director of the ACLU of Rhode Island, put it in an emailed comment, “These elites apparently include the ACLU, the RI Press Association, the New England First Amendment Coalition, and the Media Coalition, all of whom testified against his bill and in favor of hers. He would rather pass a bill that will end up providing no protection to victims because it will be struck down rather than agree to a ‘watered down’ constitutional one.”
Revenge porn is not the only issue over which Kilmartin and Raimondo have clashed. Raimondo has called for the release grand jury records involving the 38 Studios investigation, better known as the Curt Schilling debacle. Kilmartin objected, the Providence Journal reported, arguing that releasing “names and statements of cooperating witnesses” could “chill the willingness of witnesses to come forward to law enforcement in the future, particularly in cases of public corruption.”
Grand jury deliberations are traditionally kept secret. But in a friend-of-the-court brief, the ACLU of Rhode Island laid out a compelling argument for why the Schilling case should be treated differently.
“Unlike a typical grand jury investigation involving allegations of private crime by private individuals,” the brief said in part, “the investigation of 38 Studios addressed a matter of public policy of extraordinary importance that involved the decision by the state to invest $75 million in public funds. In a well-functioning democracy, the people have a need to know how the state decides to spend public funds, and this need vastly outweighs any minimal interests in secrecy present here.”
I had expected fireworks—or at least strong disagreements—when Internet privacy advocate Jonathan Zittrain and former CIA director John Deutsch debated the impasse between Apple and the FBI over a locked iPhone used by one of the San Bernardino shooters.
Instead, the two men offered nuance and a rough if imperfect consensus over how much access we should have to technologies that allow us to encrypt our personal data in ways that place it beyond the government’s reach.
“Many other paths to data are available. We are exuding data all over the place,” said Zittrain, a professor at Harvard Law School and the author of The Future of the Internet—And How to Stop It. “The FBI has chosen this case … in large part, I think, because there is so little privacy interest on the other side.”
Deutsch, an emeritus professor at MIT, sought to draw a distinction between law enforcement and terrorism investigations such as the San Bernardino case. Authorities say they need to know what was on the phone used by the late Syed Rizwan Farook because it might reveal the identities of accomplices who are planning future attacks.
“There’s a big difference between law enforcement and national security,” Deutsch said. Law enforcement, he explained, is about “catching bad people,” whereas the aim of national security is “to avoid a catastrophe.” There is a public interest in requiring cooperation from companies such as Apple in a national-security investigation, he said, with the courts setting boundaries for when such cooperation should be compelled.
If that sounds like disagreement, it was so polite and mildly worded as to create barely a stir. Indeed, people in the packed hall at Harvard’s Kennedy School on Monday evening—most of them Apple partisans, I suspect—seemed to appreciate a discussion that focused more on the fine points of technology and the law rather than on broad proclamations about Internet freedom versus the threat of terrorism.
Then, too, technology is changing so rapidly that the points raised during the debate may soon be obsolete.
Apple has been ordered to write software that will enable government investigators to gain access to Farook’s data; the company has filed an appeal seeking to overturn that order. But as Zittrain noted, Apple executives say they will soon offer encryption software to consumers that will make it impossible for anyone—even Apple itself—to break in. Such software, Zittrain added, is already available from various sources, which means that even if it were legally banned, it could still be used.
And that changes the nature of what’s at stake. As the San Bernardino case has played out, I’ve been more sympathetic to the government than to Apple. Why shouldn’t a corporation be required to comply with a court order to provide information in a terrorism investigation? And if it’s extraordinary to demand that Apple to write software so that the phone can be accessed, what of it? That’s simply a consequence of Apple’s engineering decisions.
As Deutsch put it: “That’s not really the essential point. It’s a minor part of the issue.”
On the other hand, I’m as uncomfortable as anyone with the idea that Apple and other companies could be forbidden to offer encryption so strong that even they would lack the means to bypass it. Requiring companies to build in a so-called back door would open the way not just to legitimate investigations but to privacy breaches and fraud, and would hand yet another tool to authoritarian governments seeking to repress dissent.
Zittrain and Deutsch talked about what role Congress and the courts might play in finding the proper balance between privacy and security. I asked them whether those institutions could have any role at all in a world in which no one but the end user would be able to bypass the encryption settings.
Zittrain responded that we have never lived in an era when every bit of data is accessible to a government investigator with a warrant. Even so, he said, there will continue to be vast amounts of personal data available to investigators despite the existence of strong encryption. “There’s a whole constellation of data points out there,” he said, calling it “an embarrassment of riches.”
I found Deutsch’s response more intriguing, reflecting as it did his both cloak-and-dagger days at the CIA and his long career in science.
“I don’t believe that phones irrevocably go dark,” he said, explaining that he believes Apple and other companies will retain the ability to unlock encrypted devices regardless of what they publicly proclaim. He also offered what he called “a suspicious paranoid point: all of these phones are made in China.” Would the Chinese government really allow the manufacture of technology that it couldn’t somehow access?
With technology changing so rapidly, Zittrain said, the current dispute between Apple and the FBI is “a bellwether rather than the case of the century.”
This time, in other words, Apple says that it won’t. Next time, it may say that it can’t.
As you may have heard, former state Probation Department commissioner John O’Brien and two underlings have been convicted in federal court of charges related to patronage.
In Massachusetts Lawyers Weekly, Harvey Silverglate and his legal assistant Daniel Schneider criticize U.S. Attorney Carmen Ortiz and other officials for transforming behavior they don’t like — behavior that, to be sure, was grotesquely corrupt — into a federal crime, even though patronage is perfectly legal under state law. (No, neither Silverglate, Schneider nor I am impressed that this was done via a legal theory criminalizing the system O’Brien used to facilitate the patronage rather than the patronage itself.)
More broadly, Silverglate explained how it’s done in his 2009 book “Three Felonies a Day: How the Feds Target the Innocent,” which I wrote about for The Guardian. As for Ortiz, she recently won her third consecutive New England Muzzle Award, now hosted by WGBHNews.org.
More: Even though I join Silverglate and Schneider in believing the legal case was dubious, the facts that were unearthed would make a jackal puke. Kudos to The Boston Globe for exposing this violation of the public trust.
In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.
Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)
Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”
Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:
With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.
The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.
Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.
Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.
Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.
This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:
This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.
Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)
What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.
Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.
The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.
The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.
And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:
Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.
Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.
Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.
Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.
Previously published by WGBHNews.org, the Providence Phoenix and the Portland Phoenix.
For anyone who’s been paying attention, President Barack Obama’s disappointing record on free speech, civil liberties, and governmental transparency is old news.
This year, though, is special. Obama’s longstanding lack of respect for the role of a free press in a democratic society reached new depths when it was revealed that his Justice Department had snooped on the Associated Press and Fox News’ James Rosen in trying to ferret out leakers.
Then came the überleaker — Edward Snowden, who provided The Guardian and The Washington Post with documents showing that the National Security Agency was monitoring our phone traffic, our emails, and other communications on a scale more massive than previously imagined.
“I welcome this debate and I think it’s healthy for our democracy,” Obama said after the NSA revelations. Yet his administration has already begun the process of bringing criminal charges against Snowden that could put him behind bars for decades.
It is against that chilling backdrop that Harvey Silverglate and I present the 16th Annual Muzzle Awards — a Fourth of July round-up of outrages against free speech and personal liberties in New England during the past year.
Launched in 1998, the Muzzles’ home was the late, great Boston Phoenix, which ceased publication in March. This year we are pleased to bring the Muzzles to WGBH.org, and to continue publishing them for readers of The Providence Phoenix and The Portland Phoenix.
The envelopes, please.
US Attorney Carmen Ortiz: Prosecuting — and persecuting — a fragile Internet visionary
Last January, Aaron Swartz, a 26-year-old computer prodigy and an activist for open information, hanged himself in his New York City apartment. Swartz suffered from depression and was reportedly despondent over a criminal case that Carmen Ortiz had brought against him for downloading millions of academic articles at MIT without authorization.
Swartz, who co-founded Reddit and helped develop the RSS standard, had done nothing with the articles. JSTOR, the company whose servers he had targeted, declined to press charges. But Ortiz pursued him zealously, putting out a public statement threatening him with 35 years in prison. After his death, she let it be known that he faced “only” six months behind bars if he’d pled guilty.
Ortiz may have decided to make an example of Swartz because of his outspokenness about oppressive copyright enforcement and related issues, which his MIT stunt was meant to illustrate. It wouldn’t be the first time she had demonstrated her contempt for free speech. Last year Ortiz received a Muzzle for her successful prosecution of Tarek Mehanna, a vile propagandist for Al Qaeda whose activities should nevertheless have been protected by the First Amendment.
Yet even after his death Swartz succeeded in advancing the cause of openness. In May, The New Yorker unveiled Strongbox, software that would allow whistleblowers to deposit leaked documents without being traced. Bradley Manning might never have gotten caught if it had been available to him, nor Edward Snowden if he’d chosen to use it.
The developer was Aaron Swartz.
Boston Police Commissioner Ed Davis: Strong in a crisis, but he also spied on antiwar and Occupy left
Ed Davis and other law-enforcement officials have been justly praised for their handling of the Boston Marathon bombing and its aftermath. Though the voluntary “shelter in place” order may have been excessive, a chaotic, frightening chain of events was handled with competence and courage.
The problem is that, in non-emergency situations, the authorities have a habit of demonstrating a grotesquely misplaced sense of priorities. Such was the case last October, when the ACLU of Massachusetts and the state chapter of the National Lawyers Guild unearthed documents showing that the Boston Police Department had been spying on antiwar and Occupy protesters. Among the BPD’s targets: the late Howard Zinn, an elderly Boston University professor and World War II hero. According to a report by Jamaica Plain Gazette editor John Ruch, also targeted was a 2007 antiwar rally featuring activist Cindy Sheehan, then-city councilor Felix Arroyo Sr., and Carlos Arrendondo, who memorably came to the aid of a badly injured spectator, Jeff Bauman, at the marathon bombing.
The police shared that information with the Boston Regional Intelligence Center (BRIC), the so-called fusion center comprising federal and state authorities that was supposed to be tracking terrorist threats — yet apparently never received information provided by Russian intelligence about Tamerlan Tsarnaev. Michael Isikoff of NBC News (here) and Chris Faraone, writing for DigBoston (here), offer worthwhile analysis.
Let’s hope that Davis, who also won a Muzzle in 2010, now realizes he was looking in the wrong places all along — and violating the civil liberties of patriotic Americans.
Max Kennedy: Still stonewalling after all these years on RFK’s official papers
It was bad enough that the Kennedy family had refused to release what were described as the private papers of the late Robert Kennedy. But then, last August, Boston Globe reporter Bryan Bender revealed that many of the papers were actually official documents from RFK’s time as attorney general, including some that may have pertained to assassination attempts against Cuban president Fidel Castro.
Yet the papers have still not been released. And thus RFK’s son Max Kennedy, who has acted as the family’s spokesman, earns his second Muzzle for stonewalling on the RFK papers (the first came in 2011).
According to an index obtained by Bender, the 62 boxes of files may contain crucial insights into such matters as the Kennedy administration’s anti-Castro activities, the Cuban missile crisis, and the Vietnam War. Max Kennedy said the family hoped to release all the papers. But one of the hold-ups, according to the Globe, was the family’s desire to get a tax deduction for the papers before turning them over to the public domain.
As a Globe editorial put it, the Kennedy family “never should have been granted control over official documents in the first place. And they certainly shouldn’t feel entitled to a tax deduction for them.”
It’s time to see what’s in those files.
Governor Paul LePage: Maine’s pro-gun governor tramples on the public’s right to know
Editors at the Bangor Daily News must have known their request for public documents about concealed-gun permits last February would be controversial. After all, The Journal News of White Plains, NY, had already set off a firestorm by publishing an interactive map of gun owners on its website.
But the reaction to the BDN was so intense that it called into question the very nature of “public” records. State legislators, especially Republicans, denounced the newspaper. A “Boycott Bangor Daily News Dont [sic] Tread on Us” page popped up on Facebook.
And our Muzzle winner, Governor Paul LePage, demagogued the issue, posing for a photo in which he’s seen holding up his own concealed-gun permit. He also called on the state legislature to the remove the data from the public realm as quickly as possible. (The legislation was passed and signed in April, according to the New England First Amendment Coalition.)
“If newspapers would like to know who has concealed weapons permits, then they should know the governor has his,” LePage was quoted as saying. “I have serious concerns that BDN’s request will incite fear among gun owners and nongun owners alike regarding their safety.”
It was all too much for the newspaper, which ended up withdrawing its request — even though, in an “Editor’s Note,” the paper said it “never would have published personally identifying information of any permit holder.”
This is LePage’s third Muzzle, with his previous awards coming in 2011 and 2012. His earlier antics leaned toward the buffoonish. This time, he acted as a thug, leading an unruly mob to trample on the public’s right to know.
Former New Hampshire House Speaker William O’Brien: Playing unfavorites with the press
William O’Brien is not one to brook much in the way of back talk. When a protest broke out in the House gallery during a budget hearing in the spring of 2011, he ordered state police to kick everyone out.
A year later, a fellow Republican legislator became so upset with what he saw as O’Brien’s attempts to silence him that he directed a toxic remark at the Speaker: “Seig Heil.” The legislator was ejected from the chamber and forced to apologize.
It was the Hitler reference that led to O’Brien’s Muzzle. Because Mike Marland, a cartoonist for the Concord Monitor, followed up by depicting O’Brien with a Hitler-like mustache, accompanied by the caption “If the mustache fits …”
O’Brien got his revenge. Last July, he scheduled a news conference to be held in his Statehouse office — and banned two Monitor journalists who tried to enter. An O’Brien spokeswoman explained: “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.” (Tony Schinella of Concord Patch shot video of the journalists being held at bay, and of O’Brien responding noncommittally when asked about it.)
Trouble is, though public officials are under no obligation to give journalists special treatment by (for instance) granting interviews, under the First Amendment they must give them equal treatment when holding official events such as a news conference on public property.
O’Brien, no longer Speaker after voters returned Democrats to the majority in the last election, is now running for Congress.
Rhode Island Public Schools: ACLU filtering study reveals widespread Internet censorship
Over the past two decades, the Internet has become a crucial tool in public education, opening schoolchildren to the broader world. Yet concerns about sex, violence, and other inappropriate content has led many school districts to impose draconian restrictions limiting kids’ access to even the most innocuous material.
The ACLU of Rhode Island set out to document online censorship in the schools — and what it found should chill all of us. It turns out that filtering software used in the Rhode Island Public Schools has blocked students from accessing websites such as PBS Kids, National Stop Bullying Day, a video clip of The Nutcracker, and information about global warming. Also blocked were educational resources for gay and lesbian teens.
There is no reason to believe that Internet censorship is worse in Rhode Island than it is in other states. Under the federal Children’s Internet Protection Act, all schools and libraries that receive federal funding must filter “obscene” content, child pornography, and material that’s considered “harmful to minors” — the last being a dangerously fuzzy standard. The ACLU study, by policy associate Hillary Davis, documents problems in Rhode Island but includes findings and recommendations that should be applied nationally.
“In trying to prevent students from visiting ‘inappropriate’ websites, school officials have instead taken advantage of technology to implement an unjustifiable scheme of censorship,” according to Davis’s report. “This must change, for it is only through the free exchange of ideas that students can truly experience a full education.”
Plainridge Racecourse: A citizen journalist fights off a lawsuit aimed at silencing him
Last September the owners of the Plainridge Racecourse in Plainville, MA, SLAPP’d Thomas “T.J.” Keen hard. In the end, he slapped them back harder.
Keen, a Plainville resident and gambling opponent, set up a website called No Plainville Racino to fight a proposed slots license at the track. As Boston Globe columnist Yvonne Abraham described it, Keen’s troubles began after someone broke into his home and he gave a webcam image to the Plainville Police. The picture made its way onto a related Facebook page that another gambling opponent had started. An anonymous commenter wrote, “I wonder if they checked over at the racetrack, lol.”
Ourway Realty, which owns the track, sued Keen for defamation on the basis of that anonymous comment. Keen countersued, arguing that Ourway’s legal action had been filed for the sole purpose of stifling public debate and thus violated the state’s anti-SLAPP law. (SLAPP stands for “strategic lawsuit against public participation.”)
In the end, Keen — and the right of citizens to speak out — prevailed. Judge Patrick Brady of Norfolk Superior Court tossed aside the suit and awarded Keen nearly $25,000 to cover his legal costs, according to The Sun Chronicle of Attleboro.
“I’m happy that the court has affirmed affected citizens’ right to petition and make their voice heard in these community-changing debates,” Keen said in a statement released by the ACLU of Massachusetts, which helped represent him. “Residents should not be intimidated or bullied by deep-pocketed firms looking to quash their dissenting voice.”
Maine Department of Transportation: Keeping records about a controversial highway from the public view
A private developer has proposed a $2 billion, 220-mile highway connecting Calais to the east and Coburn Gore to the west — and all documents pertaining to the project are under seal. That’s because of a 2010 exemption to Maine’s right-to-know law that, as the Portland Press-Herald editorialized, “you could drive a truck through.”
Under the exemption, records about the proposed “east-west highway” will remain secret until the Maine Department of Transportation (DOT) decides whether to move ahead. This lack of accountability is an outrageous breach of the public trust. By rights, the officials responsible for writing and passing the 2010 exemption deserve the Muzzle. We’ll award it to the DOT as their proxy.
Fortunately, advocates of open government succeeded in undoing the worst of the 2010 exemption. On June 5, Governor Paul LePage signed legislation that maintains the legitimate need to protect confidential business information and trade secrets while subjecting most aspects of such partnerships to public scrutiny.
“Decisions about whom the government enters into partnership with and how officials spend our taxpayer money are certainly matters of public importance,” wrote Rachel Healy, communications director for the ACLU of Maine, in a commentary for the New England First Amendment Center.
The east-west highway is a controversial idea. According to the Associated Press, business owners this spring told the legislature’s transportation committee that the highway would cause them significant harm. They — and everyone in Maine — deserve to be treated with respect. A transparent process will provide that.
Rhode Island prison chief A.T. Wall: Prisoners have free-speech rights, too
Does a prison inmate forfeit his First Amendment rights? Yes, to an extent. But as US Magistrate Lincoln Almond patiently explained last September, an inmate who criticizes a prison policy that is applicable to other inmates and who provides them with relevant information — unlike a “personal matter of purely individual interest” — may indeed be engaging in protected speech.
Almond was aiming his words at the Rhode Island Department of Corrections (DOC), whose director, Ashbel T. “A.T.” Wall II, was fighting a lawsuit brought by Jason Cook, an inmate at the Adult Correctional Institute in Cranston. Cook claimed that after he complained to The Providence Journal in 2007 about a new policy that restricted reading materials an inmate could receive (which itself raised First Amendment issues and was later rescinded), prison authorities retaliated by taking away his kitchen job, trashing his cell, holding him in segregation, and subjecting him to strip-searches. The resolution of Cook’s lawsuit is still pending.
In defending itself against Cook’s lawsuit, the DOC argued, among other things, that Cook had no First Amendment right to speak to the Journal, thus prompting Almond’s finding. The DOC appealed. In February, US District Judge William Smith upheld most of Almond’s recommendations, including his finding that Cook did indeed enjoy some First Amendment protections.
“The DOC’s position that inmates could be disciplined simply for bringing prison conditions and policies to the public’s attention was extremely troubling,” said Steven Brown, executive director of the Rhode Island ACLU.
Convicted criminals, understandably, give up many of their rights when they are sentenced to prison. But it doesn’t and shouldn’t put them beyond the protection of the Constitution. A.T. Wall may not like it — but at least now he presumably understands it.
Massachusetts Superior Court Judge Peter Lauriat: Twitter emerges as a vital news tool — but not in this courtroom
The courts remain our least open institution. Twitter has helped change that, as reporters are able to send updates throughout the day from inside the courtroom. For instance, a phalanx of media is now live-tweeting every moment of the Whitey Bulger trial.
Then there is Judge Peter Lauriat, who last winter presided over the case of Nathaniel Fujita, convicted in March of murdering his girlfriend. Lauriat had no problem with television cameras or even live-blogging — but he drew the line at Twitter.
According to Robert Ambrogi, a lawyer who is also executive director of the Massachusetts Newspaper Publishers Association, Lauriat initially banned Twitter from anywhere inside the Middlesex Superior Courthouse in Woburn. He later backed off and allowed tweeting from a separate media room, but not from the courtroom itself.
“The ban on tweeting drew the unavoidable question: What’s the difference?” asked Ambrogi. The answer is unclear.
David Riley wrote at the Wicked Local Blog that Lauriat was concerned that jurors were more likely to run across a tweet by accident than another form of media.
Jeff Hermes, director of the Digital Media Law Project, reported that Lauriat expressed doubts about the quality of journalism when reduced to 140-character updates, and about his inability to prevent attendees who had not registered as journalists from firing up Tweetbot on their smartphones.
None of these were good enough reasons to ban what has become a vital news medium. Lauriat acted as he did because he could. He shouldn’t have had that option.
Wednesday was a very good (if not quite great) day for gay and lesbian couples. Unfortunately, the stench of Tuesday’s voting-rights decision remains. Here is some needed perspective on the Supreme Court’s week by Linda Greenhouse of Yale Law School, who used to cover the court for The New York Times.
As a country, we are moving left on individual rights (though not individual liberties) and right on everything else. You will be free to do as you’re told.