Senate Democratic Leader Chuck Schumer has been harshly criticized for his handling of the government shutdown. Photo (cc) 2024 by the Jewish Democratic Council of America.
We’ve been hashing out the pros and cons of ending the government shutdown on Facebook this week. My position has been that the Democrats shouldn’t have caved, but that it was a close call. Certainly the shutdown couldn’t have gone on too much longer, especially with families in danger of going hungry and federal workers not receiving paychecks.
More than anything, I didn’t see any possible way that the Democrats could achieve their stated objective of forcing Donald Trump and the Republican Congress to extend health-care subsidies. The government could have stayed shut for six more months and that wouldn’t have changed.
Imagine, if you will, a public school, supported by taxpayer dollars, claiming that it’s a private corporation and doesn’t have to comply with the state’s public records law. It is absurd on the face of it. Yet that’s what the Mystic Valley Regional Charter School is arguing in a case before the Supreme Judicial Court.
According to an account by Jennifer Smith in CommonWealth Beacon, at least two of the justices appeared to be unimpressed by the Malden-based school’s claims when the case was argued at a recent hearing.
“You’re in real trouble,” Justice Scott Kafker told Charles Waters, a lawyer for the school, explaining, “It quacks like a duck, it waddles like a duck, it paddles like a duck.” Added Justice Dalia Wendlandt:
I understand charter schools were created to be independent in certain ways, to foster innovation in education and have the ability to do that in a way that the average public school does not. Good. But that doesn’t carry you to the argument that they’re not subject to the public record law.
At issue are some 10 instances in which public records were sought by a Facebook-based local news organization called the Malden News Network, Commonwealth Transparency and Malden mayoral candidate Lissette Alvarado. Smith reports that the requested information includes “corporate statements, contracts, ledgers, lease records, conflict of interest disclosures filed by board members, payments made to employees or professional services, and confidentiality and non-disclosure agreements.”
The case dates back to mid-2023, when state Attorney General Andrea Campbell filed a legal action against the school to force it to comply with the public records law. For fighting so stubbornly to conduct the public’s business behind closed doors, the Mystic Valley school has earned a New England Muzzle Award — its second. In 2017, I awarded a Muzzle to the school for discriminating against Black students by banning long braids and dreads. In 2022, the school sent a female Muslim student home because she was wearing a hijab in violation of the student dress code.
Despite the school’s reputation for academic excellence, there is clearly a culture problem that needs to be addressed.
According to Smith’s report in CommonWealth Beacon, Mystic Valley is claiming that it’s not subject to the public records law because “Charter schools, in their view, are public schools that are structured and treated in some ways more like corporations.” Among those disagreeing is the Massachusetts Charter Public School Association. Then again, Mystic Valley is one of just three charter schools that are not members of that organization.
In an editorial (sub. req.) calling for the SJC to rule against Mystic Valley, The Boston Globe observes that the school has already lost in decisions rendered by the state supervisor of records, the attorney general and a Superior Court judge. The editorial concludes: “Charter schools have been a great asset to Massachusetts families; indeed, Mystic Valley has been ranked as one of the best schools in the state. But that’s not the issue here. The issue is that the public has a right to know how their tax dollars are being spent.”
Even as major media organizations like ABC’s parent company, Disney, and CBS’s, Paramount, were settling bogus lawsuits filed by Donald Trump in order to demonstrate their submissiveness, an unlikely defender of the First Amendment has emerged: USA Today Co., which until earlier this week was known as Gannett.
A federal judge on Thursday threw out a class-action lawsuit charging that Gannett’s Des Moines Register and pollster J. Ann Selzer committed fraud when they reported days before the 2024 election that Kamala Harris held a three-point lead over Trump in Iowa. As you may recall, the poll results created a sensation, but they turned out to be wrong: Trump won Iowa by 13 points, which was about what you’d expect.
The class-action suit was brought by a resident of West Des Moines named Dennis Donnelly, who claimed that he and other Register subscribers were victims of fraud because the Register acted with “intentional deceit or reckless disregard,” according to Emma Brustkern of WFAA-TV.
The suit is similar to one brought by Trump himself against Gannett, the Register and Selzer (he later dropped Selzer from the claim), calling the poll “brazen election interference.” That is, of course, a ridiculous allegation. More than anything, pollsters want to get it right, but sometimes they get it wrong. And sometimes, as in the case of Selzer in 2024, they get it very wrong. As U.S. District Judge Rebecca Goodgame Ebinger writes in her decision:
No false representation was made. Defendants conducted a poll using a particular methodology which yielded results that later turned out to be different from the event the poll sought to measure. The results of an opinion poll are not an actionable false represention merely because the anticipated results differ from what eventually occurred.
Trump’s own lawsuit is likely to meet a similar fate. So good for USA Today Co., which has shown a stiffer spine than some other media companies. Rather than allowing itself to be used by the Trump regime as a way of weakening the First Amendment, it is standing up to authoritarianism.
Larry Bushart under arrest. Photo by the Lexington, Tenn., police department via The Intercept.
Larry Bushart is free, but he didn’t win. It was the forces of oppression that won after Bushart spent a month in jail, held on $2 million bail, for publishing a provocative Facebook post about the late Charlie Kirk and Donald Trump that Tennessee authorities decided to conflate into the felony of recklessly threatening mass violence at a school.
Bushart was released from jail Wednesday after public pressure began to build, reports Rick Rojas in The New York Times. A retired law-enforcement officer who obsessively posts liberal memes, Bushart’s offense was to publish a photo of Trump following Kirk’s murder accompanied by the words “We have to get over it,” which was a statement Trump made in 2024 after a fatal school shooting in Iowa. A line under the photo read “Donald Trump, on the Perry High School mass shooting, one day after,” along with “This seems relevant today …”
Surveillance footage of ICE goons grabbing Rümeysa Öztürk near Tufts last March.
Fifty-five student news organizations have signed on to an amicus brief challenging the Trump regime’s use of federal immigration law to revoke the visas of international students and deport them for speech that is protected by the First Amendment.
The brief was filed by a coalition led by the Student Law Press Center and joined by the Associated Collegiate Press and the College Media Association. Among the student news outlets lending their support to the brief are nine from New England, including our independent student newspaper at Northeastern, The Huntington News. The others:
The Dartmouth, at Dartmouth College
The Harvard Crimson
The Heights, at Boston College
The Mass Media, at UMass Boston
The Mount Holyoke News
The Trinity Tripod, at Trinity College
The Tufts Daily
The Yale Daily News
In addition, 11 student newsroom leaders, including one from Bates College in Maine, have signed as individuals.
The Boston Globe has published an editorial favoring passage of a shield law that would protect journalists from being ordered to identify their anonymous sources or turn over confidential reporting materials. The editorial is a strong statement in favor of press freedom, but it would have benefited from some context.
The Globe says that Massachusetts is one of just 10 states that lacks a shield law, which is accurate but not entirely true. In fact, 49 states, including Massachusetts, have some sort of shield protection either in the form of a state law or a ruling by state courts. The sole exceptions are Wyoming and, notoriously, the federal government.
Massachusetts is among those states that rely on court rulings rather than an actual law, and the Reporters Committee for Freedom of the Press lumps the state in with seven others that provide the lowest level of protection, a list that also comprises Idaho, Utah, Iowa, Missouri, Virginia, Mississippi and New Hampshire.
According to the Reporters Committee, Massachusetts lacks not only a shield law but also a ruling by its highest court, the Supreme Judicial Court, that would recognize some sort of journalists’ privilege. “Nevertheless,” the organization says, “Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.”
The way such balancing tests work is that one of the parties in a criminal or civil matter — in criminal court, usually the prosecution — demands that a journalist turn over information that they believe is crucial to proving their case. A judge then determines whether the information is important enough to require that the journalist produce it and if there is any other non-journalistic source for the same information.
As the Globe editorial notes, the most recent time that happened here was last December, when Superior Court Judge Beverly Cannone ordered Boston magazine reporter Gretchen Voss to turn over notes she had taken during an off-the-record interview with murder suspect Karen Read. Cannone reversed herself the following month, and Read was acquitted of the most serious charges in her case in June. (As the Globe editorial observes, Boston magazine is now owned by Boston Globe Media, but Voss was defended by the previous ownership.)
The legislation supported by the Globe would protect reporters who find themselves in a situation similar to that of Voss. Two identical bills that are pending in the state Legislature, one filed by Rep. Richard Haggerty, D-Woburn (H.1738), and another filed by Sen. Rebecca Rausch, D-Needham (S.1253), say in part:
In any matter arising under state law, a government entity may not compel a covered journalist to disclose protected information, unless a court of competent jurisdiction determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to the covered journalist, that the disclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States, the commonwealth or its subdivisions; or the disclosure of the protected information is reasonably likely to prevent a threat of imminent violence, bodily harm, or death.
Terrorism, imminent violence or death are clearly much more stringent requirements than simply needing confidential information to prove a court case. Unfortunately, the chances of such legislation being enacted must be seen within the context of the Legislature’s inability to accomplish much of anything, let alone something as controversial as this. As the Globe observes, “the Massachusetts Legislature has for at least 15 years running declined to allow even a floor vote on the measure.”
One final bit of trivia: Rep. Haggerty is a member of the family that has owned The Daily Times Chronicle of Woburn since its founding in 1901, and where I was on staff for much of the 1980s.
Hulk Hogan poster. Photo (cc) 2009 by Tom Hodgkinson.
The professional wrestler Hulk Hogan died Thursday at 71. Among other things, Hogan’s death has prompted reminders that he, with the help of secret financing from Silicon Valley billionaire Peter Thiel, pursued a lawsuit that destroyed Gawker, a website that trafficked in gossip, sleaze and occasionally important investigative reporting. In 2016 I wrote a commentary for GBH News arguing that Hogan and Thiel weren’t quite the bad guys they seemed, and that Gawker’s behavior truly was reprehensible. Here is that column again.
***
Sympathy for the Devil: Billionaire Peter Thiel versus Gawker versus the First Amendment
GBH News | June 1, 2016
Does Hulk Hogan’s invasion-of-privacy suit against the news-and-gossip site Gawker threaten the First Amendment? No. But the way his case is being paid for might.
Last week we learned that Peter Thiel, a Silicon Valley billionaire, had provided about $10 million to help fund Hogan’s case. Such third-party financing is legal, and it proved to be a sound investment: in March, a Florida jury found that Gawker had invaded Hogan’s privacy by publishing a video of him and a friend’s wife without permission and awarded him $140 million.
In my previous post, I raised the question of whether the New Jersey news outlet Redbankgreen should consider making an item about an arrest that has been expunged invisible to search engines, an increasingly common practice with minor police matters. This is totally aside from the outrageous criminal case being brought against the site for its refusal to delete the item.
That prompted the editor, Brian Donohue, to contact me. He told me that Redbankgreen sometimes agrees to render certain stories unsearchable upon request — but that it won’t do so until after two years have passed.
“That is something we take enormously seriously here,” he said, “so people’s worst day of their lives don’t haunt them forever or a mistake that they made won’t haunt them forever.” He added: “The key to this case is it’s our decision. It’s not up to the government.”
Although Donohue wouldn’t talk about the particulars of the case, he did say this: “Thankfully we’re being represented by the best First Amendment firm in the state. It’s not too much time or money. It’s a lot of energy. But we think it’s important that the government cannot tell news organizations under the threat of the criminal code what to publish or what to unpublish.”
Redbankgreen, by the way, has been around for nearly 20 years. Donohue joined about a year and a half ago after a career at The Star Ledger of Newark and in local television news. Publisher Kenny Katzgrau is also the founder of Broad Street, which provides advertising services to the media business, and who was a “reluctant witness” for the defense, as Editor & Publisher put it, in the Google antitrust trial. That earned him an appearance on Mike Blinder’s podcast, “E&P Reports.”
Now here’s an interesting dilemma. A digital news organization publishes a police blotter item about an arrest. The arrest is later expunged, and the arrestee contacts the news outlet demanding that any mention of it be deleted. They refuse, though they do add a note saying that the matter had been dropped. But that’s not good enough for the arrestee, and now prosecutors are pursuing criminal charges against the two journalists for sticking by their policy against unpublishing news items.
Whew. This came to my attention recently in the form of a press release from the Freedom of the Press Foundation. The news outlet, Redbankgreen, covers Red Bank, New Jersey, and the journalists being targeted are publisher Kenny Katzgrau and editor Brian Donohue. The journalists have a clear and unambiguous First Amendment right to publish truthful information without interference from the government, but that’s not what makes this interesting.
The arrest itself was a big nothing. In August 2024, Kyle Pietila was charged with simple assault, and in March 2025, after the charge was dropped, Redbankgreen updated the item to note that a judge had expunged it “under an order determining the arrest ‘shall be deemed to have not occurred.’” I am naming Pietila only because he is pursuing criminal charges against Redbankgreen and has thus made himself a public figure.
According to the U.S. Press Freedom Tracker, which is part of the Freedom of the Press Foundation:
An attorney for the journalists filed a motion to dismiss and expunge the charges on July 11, arguing that the “publication of truthful information on matters of public significance cannot be punished unless it involves a state interest of the highest order.”
“Moreover, information concerning the arrest was published prior to the expungement, and there is no requirement in law that it be removed from the publisher’s website simply because an expungement had taken place,” Bruce Rosen wrote. “The issuance of probable cause in this matter is plain legal error, this prosecution is unconstitutional and in fact unfathomable, and the matter should be promptly dismissed.”
Unconstitutional and unfathomable are good descriptions of this. Yet there are two ethical issues that need to be considered as well.
First, in recent years thoughtful news organizations have ended the practice of regurgitating the local police blotter for the entertainment of their readers. Such alleged news, to quote the late Jack Cole, serves no public purpose, and in some cases it can reinforce racial stereotypes. A few years ago I wrote about how the Keene Sentinel in New Hampshire eliminated routine police news in order to concentrate on more serious crime and broader stories about criminal justice.
Second, I think Redbankgreen acted ethically by appending the police blotter item to note that the arrest had been expunged. What’s not clear from the coverage is whether Katzgrau and Donohue offered to engage in a milder form of unpublishing: keeping it on their website but making it invisible to search engines. A number of news organizations have done this, including The Boston Globe with Fresh Start program.
The prosecution of these two journalists is an outrage, and any officials involved should be reprimanded and punished. Nevertheless, I hope Redbankgreen’s ordeal might lead to a rethink of how they cover news from the local police.
Update: After this item was published, I heard from Brian Donohue, and we talked about Redbankgreen’s unpublishing policy.
Shari Redstone speaking at a Committee to Protect Journalists event. Photo (cc) 2022 by CPJ photos.
Given how long negotiations were dragged out, there was some reason to hope that Paramount Global wouldn’t give in and settle Donald Trump’s bogus lawsuit claiming that “60 Minutes” had deceptively edited an interview with Kamala Harris last October.
In the end, Trump got what he wanted. Paramount, CBS’s parent company, will settle the suit for $16 million. If you’re looking for one tiny reason to be hopeful, the settlement did not come with an apology. In agreeing to pay off Trump, Paramount’s major owner, Shari Redstone, will now presumably find smooth sailing through the regulatory waters in selling her company to Skydance Media. Skydance, in turn, is headed by David Ellison, the son of Oracle co-founder Larry Ellison, a friend of Trump’s.
NPR media reporter David Folkenflik has all the details. What’s clear is that this may well be the end of CBS News as a serious news organization. Just the possibility of a settlement has brought about the resignations of top executives as well as criticism from “60 Minutes” correspondent Scott Pelley. As recently as Monday, media reporter Oliver Darcy revealed that all seven “60 Minutes” correspondents had sent a message to their corporate overlords demanding that it stand firm. Murrow weeps, etc.
What I want to note, briefly, is that there are still two complications that Paramount and Skyline must contend with before wedded bliss can ensue.
The first is a threat by U.S. Sens. Elizabeth Warren, D-Mass., Ron Wyden, D-Ore., and Bernie Sanders, I-Vt., to launch an investigation into whether the payoff amounts to an illegal bribe. Given that every legal and journalistic expert who’s looked at the case believes the editing of the Harris interview was ordinary and unremarkable (among other things, “60 Minutes” edited out a clip of Harris complaining about her hay fever), that investigation might yield some headlines at least.
“Paramount appears to be attempting to appease the Administration in order to secure merger approval,” the three said in a May press release issued by Warren’s office. They added: “If Paramount officials make these concessions in a quid pro quo arrangement to influence President Trump or other Administration officials, they may be breaking the law.”
The second is a threatened shareholder lawsuit by the Freedom of the Press Foundation. In a May statement, the organization’s director of advocacy, Seth Stern, cited the three senators’ possible investigation and said this:
Corporations that own news outlets should not be in the business of settling baseless lawsuits that clearly violate the First Amendment and put other media outlets at risk. A settlement of Trump’s meritless lawsuit may well be a thinly veiled effort to launder bribes through the court system.
In this morning’s newsletter from CNN media reporter Brian Stelter, the foundation is reported to be moving ahead with its plans: “The group’s lawyers are huddling today, I’m told. A spokesperson said ‘Paramount’s spineless decision to settle Trump’s patently unconstitutional lawsuit is an insult to the First Amendment and to the journalists and viewers of “60 Minutes.” It’s a dark day for Paramount and for press freedom.’”
The Paramount settlement follows Disney’s disastrous and unnecessary $15 million settlement of a suit brought by Trump over a minor wording error by ABC News anchor George Stephanopoulos in describing the verdict against Trump in the E. Jean Carroll civil case. Stephanopoulos said Trump had been found to have “raped” Carroll, whereas the technical legal term was “sexual abuse.”
Trump’s claim failed on two grounds: What Stephanopoulos said was substantially true, and there was no evidence that the anchor had deliberately or recklessly mischaracterized the outcome of the case. But no matter. Disney settled anyway.
So far, at least, Gannett is holding firm in Trump’s suit against The Des Moines Register and pollster Ann Selzer over a survey that showed Trump trailing Harris in the Buckeye Hawkeye State (which he ended up winning easily) several days before the 2024 election.
Correction: Like the great Boston Brahmin writer Cleveland Amory, I regarded “the West” as anything west of Dedham. So, yes, Iowa is the Hawkeye State. I’m fixing that here and in Tuesday’s item as well.
“You’re in real trouble,” Justice Scott Kafker told Charles Waters, a lawyer for the school, explaining, “It quacks like a duck, it waddles like a duck, it paddles like a duck.” Added Justice Dalia Wendlandt:
