First Amendment – Media Nation

Fighting back against official harassment; plus, Biden’s fitness, and more on that Everett libel case

An idyllic scene in Lancaster, Penn. Photo (cc) 2018 by the U.S. Department of Agriculture.

Reliable and comprehensive local news can help ease the polarization that has infected our national discourse. But it’s not a guarantee — and when MAGA-drenched politics pervades community life, the result can be that the press is attacked in a manner that’s similar to the cries of “fake news” from Trump supporters.

Which is exactly what is happening right now in Lancaster, Pennsylvania. In a lengthy article for The Washington Post, Erik Wemple tells the story of Tom Lisi, a reporter for the newspaper LNP who’s become the focus of relentless attacks (gift link) from the Republican chairman of the county commission.

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That chairman, Joshua Parsons, has his eye on a state senate seat, and he is evidently using his crusade against Lisi in order to build support for his campaign. Among other things, Parsons has accused Lisi of lying about harassment he’s been subjected to, making up stories “out of whole cloth,” and of having “skulked around waiting to ambush County staff.” As Wemple wryly observes: “‘Reporter’ is an appropriate term for someone who skulks around ‘waiting to ambush County staff.’” Wemple adds:

[T]he events in Lancaster County bear … on a question that has vexed leaders in journalism in recent decades: Just how should they respond to the frequent, strident and often flimsy attacks from Republican politicians? Should they stick to the industry’s default mode of turning the other cheek? Or should they speak up to challenge the gripes?

LNP and its associated website, Lancaster Online, are not part of a corporate chain or owned by a hedge fund. Rather, the media outlet was saved in 2023 by public radio station WITF and has a newsroom of 70 journalists — impressive for a medium-size daily. That transaction, though, has resulted in an enormously complex ownership structure involving three separate nonprofit boards along with all the potential conflicts of interest that entails.

As for Lisi, Wemple writes that he has started to push back publicly on Parson’s falsehoods and exaggerations about his reporting, and that on one occasion he left his tormenter momentarily speechless. The lesson, according to Wemple: “Confront the media bashers wherever they practice their profession.”

Biden’s fitness

The Wall Street Journal today published an investigative report (gift link) on attempts by President Biden’s inner circle to control access not just throughout the past four years but during the campaign that preceded it as well.

There are some harrowing details but also some problems with the reporting, including this, in which an anonymous aide quotes an anonymous official:

If the president was having an off day, meetings could be scrapped altogether. On one such occasion, in the spring of 2021, a national security official explained to another aide why a meeting needed to be rescheduled. “He has good days and bad days, and today was a bad day so we’re going to address this tomorrow,” the former aide recalled the official saying.

Despite such hazy sourcing, the Journal’s story is a valuable addition to what we are learning about Biden’s age-related problems during the past half-dozen years. In retrospect, a Journal story (gift link) in early June of this year was the big breakthrough, although it was marred by its overreliance on Republican sources. A few weeks later, Biden met Donald Trump on the debate stage, and that was the beginning of the end of his re-election campaign.

A few points are now obvious: First, Biden’s inner circle covered up the president’s fading mental acuity for years — which makes you wonder why they went along with the June debate, which led directly to Kamala Harris’ candidacy and at least gave Democrats a fighting chance of holding on to the White House. Second, Biden should have pledged to serve just one term when he ran in 2020; at the very least, he should have declared victory and pulled out after Democrats did unexpectedly well in the 2022 midterms.

That we still don’t know exactly how impaired Biden was and is speaks to how difficult it is for reporters to pierce the veil. As the Journal’s story makes clear, members of Congress and even Cabinet secretaries were kept in the dark. This was not a failure of journalism so much as it was a failure of the president and the people around him to level with the public.

Everett update

Earlier this week, I noted that neither of Everett’s two remaining weekly newspapers had published anything about the demise of the Everett Leader Herald, which shut down and agree to pay Mayor Carlo DeMaria $1.1 million in order to settle a libel suit. Publisher and editor Joshua Resnek had previously admitted he fabricated stories and quotes aimed at making DeMaria appear to be corrupt.

Well, now both papers, which are owned by small independent chains, have been heard from. The Everett Advocate has an especially tough headline, “A Victory Over Journalistic Dishonesty,” with reporter Mark E. Vogler detailing the Advocate’s own role in exposing the Leader Herald’s fictions about DeMaria.

One aspect of the settlement that I was wondering about is clarified in Vogler’s story. He quotes a lawyer for DeMaria, Jeffrey Robbins, as saying that the demise of the Leader Herald was in fact a stipulation of the settlement rather than simply a side effect of suddenly having to come up with $1.1 million. “All a jury would have decided to do in this case would be to decide whether to award damages and how much in damages,” Robbins told Vogler. “But a jury could not have ordered a newspaper to close down. That was one of the things that made the settlement unusual.”

The Everett Independent has a shorter article, written by reporter Cary Shuman, headlined simply “DeMaria Vindicated.”

Finally, the Leader Herald’s former website now consists of a WordPress page that says, “You need to be logged in as a user who has permission to view this site.”

Social media and its discontents; plus, Trump’s war against the press, and the Globe’s latest Steward stunner

Almost from the beginning of the social-media age, I’ve been too deeply immersed for my own good. So I appreciated this recent essay (gift link) in The New York Times Magazine by J Worthen, who tells us that Bluesky might look like the better, kinder place at the moment but that it’s probably destined to turn into a vortex of sociopathy like all the rest. Here’s the nut:

We have officially arrived in late-stage social media. The services and platforms that delighted us and reshaped our lives when they began appearing a few decades ago have now reached total saturation and maturation. Call it malaise. Call it Stockholm syndrome. Call it whatever. But each time a new platform debuts, promising something better — to help us connect better, share photos better, manage our lives better — many of us enthusiastically trek on over, only to be disappointed in the end.

As someone who used to get into fights on Usenet back in the 1990s (look it up), long before anyone had ever thought of using algorithms to drive content that engages and enrages, I agree that it’s hopeless. Bluesky might prove to be the exception. Among other things, you get to choose your own algorithm, or none at all. But it really doesn’t matter. The real problem is that, no, you can’t have meaningful conversations with strangers, and social media is inimical to the way we’ve evolved.

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The post-Musk social-media landscape has also been defined by the incredibly annoying practice of platform-shaming — a hopeless chase after the least-evil alternative, accompanied by bitter criticism of anyone who would dare keep using those platforms that are deemed insufficiently free of harmful entanglements.

Continue reading “Social media and its discontents; plus, Trump’s war against the press, and the Globe’s latest Steward stunner”

Did ABC News settle with Trump to avoid pre-trial discovery?

E. Jean Carroll in 2006. Photo (cc) 2006 by julieannesmo.

Like most observers, I figured that ABC News’ decision to settle a libel suit with Donald Trump for a total of $16 million had more to do with the network’s desire to make a public relations problem disappear than it did with any chance that the network would actually lose the case.

After all, when anchor George Stephanopoulos said on the air that Trump had been found “liable for rape” in a lawsuit brought by the writer E. Jean Carroll, he was merely quoting a federal judge, who said a civil-court jury had indeed found that Trump “raped her” [Carroll] using the everyday meaning of the word rather than the strict legal definition.

But CNN media reporter Brian Stelter raises another intriguing possibility: that ABC’s lawyers wanted to avoid pre-trial discovery. As Stelter reports, ABC didn’t even wait for the judge to rule on whether to grant summary judgment in the case — a routine proceeding in which the defendant asks the judge to find that the plaintiff’s case is so lacking in substance that it ought to be immediately dismissed. Stelter quotes Ken Turkel, a trial lawyer who is representing Sarah Palin in her revived libel case against The New York Times:

“In my experience, when media defendants are unsuccessful at the dismissal stage,” which was in July, “they focus on preparing for summary judgment to challenge the legal sufficiency of a plaintiff’s claim,” he said. “It begs the question as to why ABC settled before the summary judgment stage.”

Turkel also said “you would have to consider” whether the discovery process unearthed emails or other internal ABC data that damaged the network’s case.

Stelter also observes that right-wing media figure Erick Erickson, who’s a lawyer, wrote on Twitter: “No, a $15 million settlement is not the cost of doing business. It is avoiding discovery.”

This makes a great deal of sense. Based on what Stephanopoulos said on the air, his comments were clearly not delivered with actual malice (that is, they were not knowingly false nor reckless), and they were arguably not even false given the judge’s comments. The judge, Lewis Kaplan, went so far as to say that the verdict “establishes against him [Trump] the substantial truth of Ms. Carroll’s ‘rape’ accusations.”

But pre-trial discovery may have revealed internal animus toward Trump from Stephanopoulos and/or others, which Trump’s lawyers might have been able to conflate into actual malice. Combined with Stephanopoulos’ failure to describe the verdict against Trump with 100% precision, ABC’s lawyers may have genuinely feared that Trump had a case he could win in front of sympathetic jury that loathes the media.

Did Stephanopoulos libel Trump? Based on facts that are on the record, the answer is “no.” And I still wish ABC had fought back. But the settlement may have been for a more complicated reason than ABC’s and parent company Disney’s desire to toady to the once and future president.

A tale of two libel suits: ABC News’ shocking abdication, and the end of the line in Everett, Mass.

George Stephanopoulos earlier this year. Official White House photo by Carlos Fyfe.

For this morning, a tale of two libel suits, one national, one local. The national case threatens to undermine protections for journalism that have been in place since 1964. The local case will result in the closure of a weekly newspaper that started publishing 139 years ago.

First, the national lawsuit. On Saturday, ABC News agreed to pay $15 million to Donald Trump in order to settle a libel claim over repeated on-air assertions by anchor George Stephanopolous that a jury had found Trump “liable for rape” against the writer E. Jean Carroll. The money will be paid to Trump’s presidential library and foundation, Paula Reid and Katelyn Polantz report for CNN. ABC will also pay $1 million for Trump’s legal fees and issue an apology.

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The problem is that what Stephanopoulos said was substantially true. The CNN story put it this way: “In 2023, a jury found that Trump sexually abused Carroll, sufficient to hold him liable for battery, though it did not find that Carroll proved he raped her.” And here’s the big “but”: In August 2023, U.S. District Judge Lewis Kaplan found that Trump had, in fact, raped Carroll under the everyday meaning of the word if not under the legal definition. Here’s what Lewis said at the time in the course of ruling on one of Carroll’s defamation proceedings against Trump:

Indeed, the jury’s verdict in Carroll II establishes, as against Mr. Trump, the fact that Mr. Trump “raped her,” albeit digitally rather than with his penis. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations.

I’ll give you a moment to throw up. Now, then, let’s parse this, shall we? A jury found Trump liable for “sexual abuse,” which Judge Lewis ruled was tantamount to being found liable for rape. What Stephanopoulos said was inaccurate only under the most hypertechnical interpretation of what actually happened — and, as I said, Stephanopoulos’ assertions were substantially true, which is supposed to be the standard in libel law. But ABC and its parent company, Disney, decided to appease Trump rather than continue to fight.

And what’s with Stephanopoulos? At 63, he has made many millions of dollars. If he had resigned and continued to fight rather than go along with his corporate overlords, he could have been a hero. Who knows what opportunities would have opened up for him? Instead, he’s content to continue as a highly compensated apparatchik. It’s sad.

By settling with Trump, ABC is following in the path of other corporate titans, a number of whom have donated $1 million apiece to Trump’s inauguration festivities. The donors include Facebook CEO Mark Zuckerberg, OpenAI CEO Sam Altman and Amazon founder Jeff Bezos, who owns The Washington Post.

Under the 1964 Supreme Court ruling of Times v. Sullivan and subsequent refinements, public officials and public figures like Trump need to show that statements they find harmful are false, defamatory and made with actual malice — that is, with knowing falsehood or with reckless disregard for the truth — in order to win a libel suit.

What Stephanopoulos said arguably wasn’t even false, and surely it didn’t amount to actual malice. A deep-pockets defendant like Disney ought to stand up for the First Amendment lest its cowardly capitulation to Trump harm other media outlets without the wherewithal to fight back.

Coming at a time when two of the Supreme Court’s justices, Clarence Thomas and Neil Gorsuch, have publicly signaled that they would like to weaken Times v. Sullivan, ABC’s behavior is shockingly irresponsible.

Local paper to close

Now for the local case. On several occasions I’ve written about an explosive libel suit brought against the weekly Everett Leader Herald by that city’s mayor, Carlo DeMaria.

Unlike the matter of Trump and ABC, you will not find a clearer example of actual malice, as Leader Herald publisher and editor Joshua Resnek testified in a deposition that he’d made up facts and quotes in a campaign aimed at impugning DeMaria’s integrity. That news was broken in January 2023 by Boston magazine’s Gretchen Voss. Indeed, eight months later, Middlesex Superior Court Judge William Bloomer froze assets belonging to Resnek and one of the paper’s owners, Matthew Philbin, because he believed DeMaria was likely to win his case.

The denouement came Sunday when The Boston Globe reported that the suit would be settled for $1.1 million and that the Leader Herald would be shut down as part of the settlement. Globe reporter Maddie Khaw writes:

Resnek, who writes and edits most of the Leader Herald’s articles, has frequently used the nickname “Kickback Carlo” to refer to DeMaria, a moniker representing Resnek’s claims that DeMaria had received illegal payments in real estate deals.

Records show that Resnek has admitted to knowingly reporting falsehoods and fabricating quotes.

“Mr. Resnek wrote what he wrote because he believed Mr. DeMaria was bad for the City of Everett and he was motivated by the fanciful notion that he could bring about Mr. DeMaria’s defeat in the [2021] election for Mayor,” the defendants’ lawyers wrote in court documents.

In fact, DeMaria was re-elected in 2021.

DeMaria and his lawyers will hold a news conference later today. Meanwhile, there is nothing up at the Leader Herald’s website about the settlement, which features several stories that were posted as recently as this month.

Incredibly, Everett is also the home of two other weekly newspapers, the Everett Independent and the Everett Advocate, both of which are part of small, locally owned chains; neither of them has anything on the settlement, either.

A proposed federal shield law dies; plus, The Onion v. Alex Jones, and Krugman’s awkward farewell

Sen. Tom Cotton. Photo (cc) 2016 by Michael Vadon.

The PRESS Act, which would protect reporters from being forced to identify their anonymous sources or turn over confidential documents, appears to be dead despite passing the House on a unanimous vote earlier this year.

Clare Foran and Brian Stelter report for CNN that the bill died Tuesday after Republican Sen. Tom Cotton of Arkansas objected to an attempt to pass it by unanimous consent. Cotton said that passage would turn senators “into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.” President-elect Donald Trump has demanded that Republicans defeat the measure, so that would appear to be the end of the road.

Meanwhile, the Reporters Committee for Freedom of the Press, a staunch supporter of the bill, noted that the U.S. Justice Department’s Inspector General’s office released a report Tuesday finding that journalists’ records had been sought during Trump’s first term in violation of internal guidelines. CNN, The New York Times and The Washington Post were targeted along with members of Congress and congressional staffers.

In a statement, RCFP executive director Bruce Brown said:

The government seizure of reporters’ records hurts the public and raises serious First Amendment concerns. This investigation highlights the need for a reasonable, common-sense law to protect reporters and their sources. It’s time for Congress to pass the PRESS Act, which has overwhelming bipartisan support, to prevent government interference with the free flow of information to the public.

The PRESS Act, which stands for Protect Reporters from Exploitative State Spying, would add the federal government to the 49 states that already have some form of shield protection for journalism. The sole exception is Wyoming.

Trump is hardly alone in his contempt for the importance of journalistic anonymity in holding government accountable. Former President Barack Obama was so aggressive in demanding that reporters identify leakers that I once wrote a commentary for The Huffington Post headlined “Obama’s War on Journalism.”

Under President Biden, though, Attorney General Merrick Garland issued guidance prohibiting federal prosecutors from seizing journalists’ records except in a few narrow cases involving terrorist investigations or emergencies — the same exceptions that are spelled out in the PRESS Act. Now it seems virtual certain that Trump will return to his previous repressive practices, with Tom Cotton cheering him on.

Media notes

• Peeling back The Onion. The internet exploded in celebration recently when The Onion won a bid to purchase Infowars from right-wing conspiracy-monger Alex Jones, who was sued into bankruptcy by the families of children who were killed in the Sandy Hook school massacre of 2012. Jones had spread false stories that the shootings were somehow faked. Now, though, a bankruptcy judge has ruled the Infowars auction was improperly conducted in secret and may have resulted in less money for the families than an open process, David Ingram reports for NBC News.

• Krugman’s awkward farewell. Longtime New York Times columnist Paul Krugman, surely the only opinion journalist to have won a Nobel Prize, wrote a heartfelt farewell column (gift link) on Monday. But though all was sweetness and light publicly, independent media reporter Oliver Darcy writes that Krugman may have left earlier than he would have liked because he regarded opinion editor Katie Kingsbury as heavy-handed, demanding a “far more thorough edit” (including the vetting of pitches) of all Times columnists than had previously been the case.

I’m looking forward to seeing what Krugman does next. I thought his column had become somewhat repetitive in recent years, but I’d welcome longer pieces from him published less frequently. He remains one of our most vital public intellectuals.

Update: Well, that didn’t take long. Krugman started a Substack newsletter in 2021, let it wither, and has now revived it.

Soon-Shiong tries (and fails) to bully Oliver Darcy; plus, Israel and the press, and prison for a harasser

Los Angeles Times owner Patrick Soon-Shiong. Photo (cc) 2014 by NHS Confederation.

Los Angeles Times owner Patrick Soon-Shiong, in an interview with Oliver Darcy on Tuesday, comes across as an entitled bully who wields disingenuous hyperliteralism as a weapon. The billionaire medical-device entrepreneur answered Darcy’s entirely reasonable questions with absurd variations on the theme of How do you know that?

Example: Soon-Shiong has asked Trump-friendly CNN talking head Scott Jennings to serve on the new editorial board he’s assembling after killing an endorsement of Kamala Harris just before the election. In response to Darcy’s asking about the wisdom of naming a truth-averse Trump defender to the board, Soon-Shiong replied:

Scott Jennings — you just said his job is to defend Donald Trump. Did you find that in his job description with CNN? I don’t know if you know that as a fact. I love to work with facts. So when you make that statement, just reflect on that. You just made that statement. Did you make that statement based on having Scott Jennings’ employment agreement with CNN?

Then there was this:

Dr. Patrick Soon-Shiong, the billionaire owner of the Los Angeles Times, believes it is an “opinion,” not a matter of fact, that Donald Trump lies at a higher rate than other politicians.

“A lot of politicians lie a lot,” Soon-Shiong declared to me on the phone Tuesday evening, pushing back against the assertion that Trump is an abnormality in American politics.

As the Pulitzer Prize-winning project PolitiFact put it earlier this year: “It’s not unusual for politicians of both parties to mislead, exaggerate or make stuff up. But American fact-checkers have never encountered a politician who shares Trump’s disregard for factual accuracy.”

Then again, Soon-Shiong’s assertions were not meant as genuine answers. They weren’t even meant to obfuscate. Rather, they were intended to establish dominance over Darcy, an independent media reporter. The pattern is clear: Darcy asks a legitimate question; Soon-Shiong responds in a way that’s intended to belittle Darcy; and then Darcy has to choose between pushing back or moving on.

Soon-Shiong has proved to be a mixed blessing for the LA Times since buying it in 2018. At various times he’s both expanded and cut the newsroom, although even the cuts haven’t been as devastating as a corporate chain owner might impose.

But his respected executive editor, Kevin Merida, quit earlier this year amid reports that Soon-Shiong was interfering in news coverage on behalf of a rich friend (or, if you will, a rich friend’s dog). Then he killed the editorial board’s Harris endorsement. That was within his rights as the owner — but he handled it so badly with his last-minute timing and conflicting statements about his reasoning that the decision was greeted with resignations and canceled subscriptions.

Of course, The Washington Post is also dealing with the consequences of a high-handed decision to cancel a Harris endorsement just before the election. But whereas it’s not clear where the Post under billionaire Jeff Bezos is headed, the fate of the LA Times seems depressingly obvious.

Bezos, at least, compiled a solid track record as the Post’s owner from the time he bought it in 2013 until maybe a couple of years ago, when he seemed to lose his way, his interest or both. Soon-Shiong has been erratic from the beginning, and it’s getting worse.

Netanyahu, Trump and the press

In a possible preview of coming attractions, Israel’s government, led by Prime Minister Benjamin Netanyahu, is cracking down on Haaretz, a liberal newspaper that has been highly critical of the way that Netanyahu has prosecuted the war against Hamas. As CNN reported earlier this week:

Israel’s cabinet unanimously voted to sanction the nation’s oldest newspaper, Haaretz, on Sunday citing its critical coverage of the war following the October 7 Hamas attacks and comments by the outlet’s publisher calling for sanctions on senior government officials.

Haaretz, which is widely respected internationally, has provided critical coverage of Israel’s war following the Hamas attacks on October 7, including investigations into abuses allegedly committed by the Israel Defense Forces (IDF) as military operations expanded across Gaza and into neighboring Lebanon.

The sanctions include a ban on advertising in Haaretz and the cancellation of subscriptions for government employees and people who work for government-owned companies. Aluff Benn, Haaretz’s editor-in-chief, wrote a defiant piece for The Guardian that concludes:

[W]e will prevail over the recent Netanyahu assault, just as we prevailed over his predecessors’ anger and shunning. Haaretz will stand by its mission to report critically on the war and its dire consequences for all sides. The truth is sometimes hard to protect, but it should never be the casualty of war.

The sanctions represent a considerable ratcheting up of Netanyahu’s campaign against freedom of the press. Earlier this year, his government closed Al Jazeera’s operations in Israel, which was bad enough. Punishing a domestic news organization takes that one step beyond.

Don’t think Donald Trump, a Netanyahu ally, isn’t watching.

Meanwhile, the Committee to Protect Journalists reports that 137 journalists have been killed since the start of the Israel-Hamas war, which began with Hamas’ horrific terrorist attack against Israel on Oct. 7, 2023. Another 74 have been imprisoned. The CPJ says:

The Israel-Gaza war has killed more journalists over the course of a year than in any other conflict CPJ has documented. Since the beginning of the war, CPJ has stood in solidarity with the affected journalists and their families. Palestinian journalists have continued reporting despite killings, injuries, and arbitrary detention at the hands of Israeli forces, none of whom have been held accountable.

Prison for harassment ‘ringleader’

The long-running saga of a frightening harassment campaign directed at New Hampshire Public Radio journalist Lauren Chooljian and others appears to nearing its end. The U.S. attorney’s office in Boston issued a press release Monday reporting that 46-year-old Eric Labarge, described as the “ringleader,” has been sentenced to 46 months in prison, fined and ordered to pay restitution.

The release quotes U.S. Attorney Joshua Levy:

Mr. Labarge was the ringleader of a targeted, terror campaign that caused the victims — journalists exercising the First Amendment rights and the families — incredible fear and emotional harm. Mr. Labarge’s terror campaign sent ripples of fear throughout the journalism community and violated the bedrock principles enshrined in the Bill of Rights.

Although the release does not name Chooljian or the other victims, all the shocking details are otherwise included. Two other perpetrators were sentenced to prison earlier this year, and a fourth has pleaded guilty and is to be sentenced on Dec. 6.

You can learn more about the background of the case here.

Despite bipartisan support, a proposed federal shield law may fall by the wayside

Sen. John Cornyn. Photo (cc) 2012 by Gage Skidmore.

Time is running out for the PRESS Act, which would protect journalists from being forced to identify their anonymous sources or turn over confidential documents. The measure is crucial to preventing the government from hauling journalists into court in order to identify whistleblowers who leak information.

Incredibly enough, the bill was passed unanimously by the House last January. But it has since stalled in the Senate, and you can be sure that it will die once that chamber flips from Democratic to Republican control and the press-hating Donald Trump returns to the White House.

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Earlier this week, Jodie Ginsberg, CEO of the Committee to Protect Journalists, called for passage of the PRESS Act in an interview on the “PBS NewsHour.” She told co-anchor Geoff Bennett:

It’s really urgent that we pass this federal shield law.

So, some states have these federal protections, which essentially means that journalists’ information, journalists’ sources can’t be subpoenaed. Information from whistle-blowers can’t be subpoenaed. It’s really important that we have that federal shield law to protect journalists at the federal level.

We know that Trump is interested in going after whistleblowers, people who leak. And it’s absolutely essential that they are protected and that journalists’ sources are protected and that journalists are allowed to do their job.

As Ginsberg notes, 49 states have some form of shield protection for journalists either in the form of a law or a ruling in the state courts. The only exceptions are Wyoming and the federal government, although the shield protection in Massachusetts is so weak that a Boston magazine reporter may be forced to turn over audio of off-the-record interviews she conducted with murder suspect Karen Read. (The PRESS Act would not affect that, which shows why we need a state shield law as well.)

On Oct. 8, 107 news media and press freedom organizations sent letters to the Senate urging passage and to the House urging that it pass the bill again should it return to that body. Among the local signatories: Boston Globe Media, the Massachusetts Press Association and the New England Newspaper and Press Association. The letter says in part:

The PRESS Act is timely and critical. Absent a federal law, journalists’ protections in federal courts against the compelled disclosure by federal officials of confidential source information or sensitive newsgathering materials vary considerably by jurisdiction. And, in recent years, under administrations of both parties, the Justice Department and other federal agencies have sought sensitive records from or of journalists on multiple occasions. While the Department of Justice adopted new internal guidance in 2021 sharply limiting that practice at DOJ, the policy remains subject to change at the department’s discretion and other federal agencies are not bound by it.

According to the Society of Professional Journalists, the main obstacle at this point is Sen. John Cornyn, R-Texas. SPJ is urging supporters to write letters to Cornyn via his website, warning, “Time is running out. It is crucial that this bipartisan federal shield bill advances this week.”

Crucially, the PRESS Act would protect not just professional journalists but anyone engaged in acts of journalism. It’s also important to note that the act would not provide blanket protection — there are a few narrow exceptions involving terrorism, emergencies or instances in which the journalists themselves are suspected of committing a crime.

Here is more background on the PRESS Act.

The Karen Read case shows why we need a shield law; plus, a State Police outrage, and Trump and the press

Massachusetts is one of eight states with the weakest level of protection for journalists’ confidential sources and materials

Prosecutors in the Karen Read murder trial are asking that a judge order Boston magazine to turn over unredacted audio recordings, notes and other materials stemming from a story about the case written by reporter Gretchen Voss that was published in September 2023.

The request raises some uncomfortable questions about freedom of the press. Kirsten Glavin, reporting for NBC10 Boston, writes that the magazine’s lawyer has argued previously that journalists have a right to protect off-the-record information. But that right — known as the journalist’s privilege — is tenuous in Massachusetts.

According to Glavin, Judge Beverly Cannone had previously granted access to audio of Read’s on-the-record interviews with Voss. Now the prosecution is seeking the full, unredacted recordings, which would include off-the-record statements by Read.

Michael Coyne, NBC10’s legal analyst, is quoted as saying that the prosecution’s strategy appears to be aimed at finding contradictions in what Read has said about the circumstances surrounding the death of her boyfriend, Boston police officer John O’Keefe. “The more information they gather, the more likely they’re going to start to uncover inconsistencies in the story and the like, and that’s all going to help them ultimately prove their case at trial,” Coyne said.

Read is accused of driving over O’Keefe while drunk and leaving him in a snowbank to die. She and her supporters contend that O’Keefe was beaten up in a nearby house and then dragged outside. Her first trial ended in a mistrial, and she is expected to be retried early next year.

The U.S. Supreme Court ruled in the 1972 case of Branzburg v. Hayes that the First Amendment does not provide for a journalist’s privilege and that reporters, like ordinary citizens, must provide testimony in court if ordered to do so.

At the state level, 49 states recognize some form of a journalist’s privilege, either through a shield law or judicial rulings. In Massachusetts, the privilege is based on the latter, as efforts to enact a shield law over the years have not gone anywhere. According to the Reporters Committee for Freedom of the Press, that places the Bay State among the eight states with the weakest protections for reporters seeking to guard their anonymous sources and off-the-record materials.

Not even shield laws provide absolute protection for the press. Nevertheless, such a law in Massachusetts is long overdue.

That will be $176k, please

In another case that raises concerns about freedom of the press in Massachusetts, Kerry Kavanaugh of Boston 25 News reports that the State Police have told the station it will have to fork over some $176,000 for records about the State Police Training Academy — and that’s just so the scandal-ridden agency can review those records to determine if they are public or not.

“Again, please note that the majority of the responsive records may be exempt in their entirety from disclosure,” the agency told her in a response to her public records request.

Kavanaugh, an investigative reporter and anchor for Boston 25, writes that the station began seeking the records following the sudden death of Enrique Delgado Garcia, a recruit who collapsed while taking part in a boxing match that was part of his training.

She also quoted Justin Silverman, executive director of the New England First Amendment Coalition, as saying:

We shouldn’t have to pay almost $200,000 to get this information. These are our tax dollars that are being spent on the state police training program. And we have a right to know whether or not that program is operating safely or whether it’s just teeing up another tragedy to occur somewhere down the road.

The state’s public records law is notoriously weak. In 2017, though, Gov. Charlies Baker signed into law a reform measure that, according to the ACLU of Massachusetts, “set clear limits on how much money government agencies can charge for public records.”

By demanding nearly $200,000 merely to screen its records to make its own determination as to whether they are public or not, the State Police may be in violation of that provision.

Kavanaugh writes that rather than paying the outrageous fee, her station is working with the State Police and has filed an appeal with the secretary of state’s office.

Journalism in the Age of Trump II

What will be the fate of journalism in the Age of Trump II? Poynter Online media columnist Tom Jones asked several folks (including me) what role the press played in Trump’s victory over Kamala Harris and what the next four years may look like. I think this observation from NPR TV critic Eric Deggans is especially on point:

The bubble of conservative-oriented media has distorted what many people even believe is fair news coverage and increased the amount of misinformation and disinformation in the public space. But I think one of the biggest problems facing mainstream news outlets now is the belief among nonconservative consumers that coverage of this election cycle let them down by “sanewashing” and normalizing Trump’s excesses. Traditional journalists who have already lost the confidence of conservative consumers are now facing diminishing trust from the news consumers who are left, which is not a great combination.

The Herald’s print numbers keep dropping while digital holds steady; plus, media notes

The Boston Herald Traveler plant sometime in the 1950s. Photo (cc) 2013 by City of Boston Archives.

Paid print circulation continues to fall at the city’s second daily newspaper, the Boston Herald, while paid digital subscriptions are essentially unchanged over the past year. That information was gleaned from published statements that the Herald filed with the U.S. Postal Service this past September as well as the previous September.

Last week I reported that the dominant daily, The Boston Globe, is losing print customers more quickly than it’s adding digital subscribers — a departure from previous years, when digital was growing rapidly. The paper is predicting a return to faster growth in 2025.

I’m reporting on the Herald’s numbers with less information than I would like, but I believe I have enough to make some accurate apples-to-apples comparisons.

Unlike the Globe, and unlike virtually every daily newspaper I’ve ever looked at, the Herald’s postal statements include Sunday numbers in its average circulation totals. If I had access to the Alliance for Audited Media’s reports, I could find separate totals for Sundays and weekdays. Last October, for instance, Mark Pickering, writing for Contrarian Boston, found that the Herald’s average paid weekday print circulation was 16,043, a decline of more than 20% over 2022. Sunday circulation, he reported, was 19,799 last year, a drop of more than 16%.

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Pickering was relying on numbers that the Herald had reported to AAN. Unfortunately, AAN ended free log-ins for journalists and researchers a couple of years ago. And when I asked for four reports last week regarding the Herald and the Globe, I was told that it would cost me $200. No thank you.

So that brings us to the seven-day print numbers that the Herald reported to the Postal Service. According to reports filed on Sept. 20, 2024, the Herald’s average print circulation during the preceding 12 months was 13,092 — a substantial drop of 2,566, or more than 16% over the previous year.

Now for digital circulation. As I wrote last week, the digital numbers that newspapers report to AAN and the Postal Service involve some double-counting and are actually higher than the internal numbers. Globe spokeswoman Carla Kath told me that the paper’s paid digital circulation is currently 261,000, an increase of 6.5% over the previous year but substantially below what’s on the postal (and AAN) statements.

Given that, I’d like to know what the Herald’s internal count of digital circulation shows. But publisher Kevin Corrado did not respond to an email seeking clarification, so I’m going to go with the postal statement. And according to that statement, the Herald’s average seven-day digital paid circulation is now 27,894, just 655 more than it was a year ago.

For some reason, the 2023 number is slightly lower than what Pickering reported at Contrarian Boston a year ago for both weekdays and Sundays, which suggests an unexplained discrepancy between what the Herald reported to the postal service and to AAN.

All told, the Herald’s average paid circulation as reported to the postal service, print plus digital, is now 40,978, a decline of 1,919, or about 4.5%.

Media notes

• Media critic Margaret Sullivan, whose lengthy résumé includes a stint as The New York Times’ public edtior, weighs in with some thoughts on a bizarro juxtaposition of Times headlines about presidential candidates Kamala Harris and Donald Trump. The headlines: “In interviews, Kamala Harris continues to bob and weave” and “In remarks about migrants, Donald Trump invoked his long-held fascination with genes and genetics,” which is another way of saying that the Orange Authoritarian is a fan of eugenics.

As Sullivan writes, the Harris head is “unnecessarily negative, over a story that probably doesn’t need to exist,” while the Trump head “takes a hate-filled trope and treats it like some sort of lofty intellectual interest.” Liberals and progressives on social media, especially on Threads, have been up in arms at what they see as the Times’ soft treatment of Trump. Though I think much (OK, some) of that criticism is overwrought, there’s no disputing that the paper blew it with the two headlines Sullivan cites.

• Speaking of the Times, executive editor Joseph Kahn was interviewed on NPR in recent days by “Morning Edition” co-host Steve Inskeep. Kahn was asked to address criticism from the left, including the Times’ obsessive coverage of President Biden’s age and its weird both-sidesy treatment of the candidates’ housing plans. (Harris: Build more; Trump: Deport the occupants.)

“In people’s minds, there’s very little neutral middle ground. In our mind, it is the ground that we are determined to occupy,” Kahn said. He added: “It’s not about implying that both sides have absolutely equal policies on all the issues. It’s about providing well-rounded coverage of each of the two political parties and their leading candidates.” Read or listen what Kahn has to say and see if you agree.

• This blog is built on WordPress, open-source software that powers many news websites. Unlike Twitter, Meta or Substack, WordPress has always seemed like a non-evil alternative. You can set up your blog at WordPress.com, a commercial hosting service, or do it yourself using the free WordPress.org software. I’ve done both, and currently Media Nation uses dot-org.

Now all that is being threatened. Longtime digital journalist Mathew Ingram, who’s gone independent, has a terrific post up about the battle between Matt Mullenweg, a wealthy entrepreneur who controls both dot-com and dot-org, and WP Engine, a major third-party hosting service that I don’t use. “In a word, it’s a godawful mess,” Ingram writes. “And every user of WordPress has effectively been dragged into it, whether they wanted to be part of it or not.”

Beehiiv, anyone?

• The PRESS Act, which would create a federal shield law to protect journalists from being forced to identify their anonymous sources except in rare cases, has been endorsed by The New York Times. I’ve written more about it here.

Middleborough teen’s Supreme Court appeal over anti-trans T-shirt seems like a stretch

Liam Morrison. Handout photo via Nemasket Week.

You may have heard that Liam Morrison, the Middleborough teenager who has sued for the right to wear an anti-transgender T-shirt to school, has appealed his case to the U.S. Supreme Court.

I wouldn’t get too excited about it, at least not yet. It strikes me as highly unlikely that the court — even this court — will want to undo precedents holding that public school officials have broad powers to control their students’ communications, whether it be the right to censor the high school newspaper or, in this case, to decide that a T-shirt’s message creates a disciplinary problem.

At the heart of Morrison’s argument is a form of fake both-sides-ism — that is, pro-trans messages have been allowed in school, so why not anti-trans messages? The problem with this is obvious. Anti-trans messages express hatred toward kids who are LGBTQ, while pro-trans messages harm no one.

As Christopher Butler reported Wednesday for The Enterprise of Brockton, Morrison is being represented by the Alliance Defending Freedom (ADF), described as a “Christian” law firm. (Scare quotes warranted given that there are many varieties of Christianity, some of which even take seriously Jesus’ admonition to love one another.) Sandy Quadros Bowles of Nemasket Week and Travis Andersen of The Boston Globe reported on the appeal as well.

According to the Southern Poverty Law Center, which tracks hate groups, the ADF agenda includes “the recriminalization of sexual acts between consenting LGBTQ adults in the U.S.” The organization also supports sterilizing trans people in other countries, has linked LGBTQ people to pedophilia and has “claimed that a ‘homosexual agenda’ will destroy Christianity and society,” the SPLC says.

Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”

Morrison sued and lost in U.S. District Court, and his appeal was rejected by the U.S. Court of Appeals for the First Circuit. Chief Judge David Barron ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.”

As for whether Morrison has a chance of riding his T-shirt to glory before the U.S. Supreme Court, as I said, it seems doubtful, but who knows with this group? It only takes four of the nine to agree to hear the case. And as Emily Birnbaum has reported for Bloomberg, the ADF “has won 15 Supreme Court Cases since 2011, and four since 2020, when Justice Amy Coney Barrett tilted the court into a 6-3 conservative supermajority.”

Still, it’s hard to imagine that the court is going to want to empower public school students to promote any message they want, especially if local school officials argue that to do so would be disruptive and create disciplinary problems. We’ll see.

Earlier coverage.