First Amendment – Media Nation

A local access operation sues town officials in Stoughton, Mass., over alleged abusive behavior

If you page through the Facebook feed of the Stoughton Media Access Corp., you’ll find the sort of fare that is typical of local access — a guide to Boston’s best museums, the town election, Town-Wide Cleanup Day and the like.

What you won’t find is any sign of a lawsuit the access group has filed against the town and three of its officials charging them with civil-rights violations and defamation, among other things. You can read all the gory details at Universal Hub, where Adam Gaffin has a thorough report. Essentially, though, SMAC, as the access operation is known, is charging that the officials threatened the operation and demanded that it stop carrying any content in opposition to a proposal to build a new elementary school. Gaffin writes:

In its suit, filed in Boston federal court, the Stoughton Media Access Corp. charges the town manager and the two select-board members have tried to block the channel from televising meetings related to the school project, demanded it run only content that supports the proposal, yelled at volunteer camerapeople, tried to get authority over the hiring and firing of the non-profit’s board members and attempted to block its funding, which comes from fees paid by the two cable companies that serve the town.

The officials named in the suit are Town Manager Thomas Calter and Select Board members Joseph Mokrisky and Stephen Cavey.

In addition to the school controversy, the suit alleges that Mokrisky went ballistic over a video that failed to give him credit for the development of a new park. “The SMAC videographer denied Mokrisky’s accusation that the video was edited to be unfavorable to Mokrisky,” according to the suit. “The SMAC videographer was brought to tears as a result of Mokrisky’s verbal assault.”

Local access is a vital part of the news ecosystem in most communities, providing live feeds of public meetings as well as a platform for residents to produce their own programs. Stoughton does not have an independent news organization, although it is served by a Patch and by The Enterprise, a Gannett-owned daily in nearby Brockton. Neither outlet has reported on SMAC’s lawsuit.

Judge in AP case stands up for the First Amendment; plus, protest coverage, and news you can’t use

By ruling in favor of The Associated Press in its lawsuit to overturn a ban imposed by the Trump White House, U.S. District Judge Trevor McFadden applied the First Amendment in a straightforward, entirely predictable manner. The Trump administration may appeal, but it would be shocking and deeply disturbing if McFadden’s decision isn’t upheld.

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First, McFadden ruled that though the White House can exercise broad discretion in terms of which news organizations are allowed access to the Oval Office, Mar-a-Lago and other venues, it must do so in a neutral manner. The White House, by explicitly stating that the AP was being banned for continuing to refer to the Gulf of Mexico by its proper name rather than the “Gulf of America,” was engaging in unconstitutional “viewpoint discrimination,” McFadden wrote. He continued:

The analysis is straightforward. The AP made an editorial decision to continue using “Gulf of Mexico” in its Stylebook. The Government responded publicly with displeasure and explicitly announced it was curtailing the AP’s access to the Oval Office, press pool events, and East Room activities. If there is a benign explanation for the Government’s decision, it has not been presented here.

The judge also rejected the Trump administration’s claim that the AP was seeking special privileges. First Amendment precedent holds that a news organization has no right to demand, say, an interview with a public official, or to be called on at a news conference. The White House claimed that’s what the AP was seeking.

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Mississippi Today will not have to turn over confidential documents as a judge dismisses ex-governor’s libel suit

Former Mississippi Gov. Phil Bryant. Photo (cc) 2019 via Wikimedia Commons.

The nonprofit news organization Mississippi Today will not have to turn over confidential internal documents, as a judge has dismissed a libel suit brought by former Gov. Phil Bryant, Grant McLaughlin reports in The Clarion-Ledger of Jackson, Mississippi.

County Judge Bradley Mills’ ruling means that Mississippi’s shield protections for journalists, regarded as among the weakest in the country, will not be put to the test. Mississippi Today said in a message to its readers:

For the past 22 months, we’ve vigorously defended our Pulitzer Prize-winning reporting and our characterizations of Bryant’s role in the Mississippi welfare scandal. We are grateful today that the court, after careful deliberation, dismissed the case.

The reporting speaks for itself. The truth speaks for itself.

Bryant sued after Today, led by reporter Anna Wolfe, reported that he had been involved in a state welfare scandal that also implicated former NFL quarter Brett Favre. Wolfe won a Pulitzer Prize, but Bryant claimed that Today’s publisher, Mary Margaret White, falsely suggested at a speaking event that Bryant had broken the law. White apologized and said she had misspoken. The news outlet itself has not retracted any of its reporting.

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Bryant sought access to internal communications in an attempt to show that Wolfe and her colleagues had committed “actual malice” — that is, that they knowingly or recklessly reported untrue facts about Bryant.

Despite last week’s good news, Mississippi Today may not be out of the woods yet. Ashton Pittman reports in the Mississippi Free Press, another nonprofit news organization, that Bryant’s lawyer plans to appeal and that he expects the case will eventually end up before the state supreme court.

“Gov. Bryant remains confident in the legal basis and righteousness of this case,” attorney Billy Quin told Pittman.

Under the First Amendment, reporters do not have a constitutional right to protect their anonymous sources or confidential documents. States are free to enact shield protections, and 49 states have done so; Wyoming is the lone exception.

But Mississippi — and, for that matter, Massachusetts — is on the weak end of those shield protections. Both states’ protections are based on state court precedents rather than a clearly defined shield law. The Reporters Committee for Freedom of the Press regards Mississippi and Massachusetts as being among the eight worst states, following Wyoming, with regard to a journalist’s privilege.

That lack of strong protection came into play in Massachusetts recently when Superior Court Judge Beverly Cannone ruled Boston magazine reporter Gretchen Voss would be required to turn over off-the-record notes from an interview she conducted with high-profile murder suspect Karen Read. Cannone later reversed herself.

Thus in both Mississippi and Massachusetts the courts have declined to issue a ruling that would force a definitive decision as to whether reporters in those states have shield protections or not.

Northeastern’s independent student newspaper stands up for free speech on campus

I want to call your attention to this strong, eloquent editorial about free speech on campus that was published by The Huntington News, Northeastern’s independent student newspaper. It is, the piece says, the first time that the News’ editorial board has weighed in on an issue in six years. The editorial says in part:

While the Trump administration has yet to single out Northeastern University as it has Columbia University, Georgetown University or the University of Pennsylvania, we believe it is only a matter of time before our institution is targeted by the administration. The moment will come when the views expressed by one of our professors are denounced as “dangerous” or when the president brands the actions of a protesting student as “illicit,” making no legal effort to justify such an accusation.

In the words of Northeastern President Joseph E. Aoun, the university’s mission “does not change with the times.” Neither does a student’s fundamental right to freedom of speech and freedom of expression. Northeastern’s mission is only as strong as our commitment to defending it. If we waver, hesitate or stall in standing up for our values, then Northeastern’s mission was never as ironclad as our administration would have us believe.

Our university must not preemptively submit to an atmosphere of fear.

The editorial board — reconstituted only within the past few days, according to editor-in-chief Sonel Cutler — also calls on the university administration to do more in speaking out against the current atmosphere of repression and to be more transparent about efforts it is reportedly taking in collaboration with other colleges and universities in Greater Boston.

Overall, the editorial is even-handed, well-written and passionate in its defense of democracy and the First Amendment.

We are in a very dark place as the Trump administration targets the First Amendment

My ethics and diversity class on Wednesday was devoted to a brief overview of First Amendment law. The class comprises nine graduate students and advanced undergrads, and they have shown throughout the semester that they are engaged and compassionate young people.

I began with a video in the news. You’ve probably seen it. It shows black-clad, masked thugs, apparently with ICE, approaching a young woman on a sidewalk at Tufts University, hauling her off to a van and driving her away. Her name is Rumeysa Ozturk, and she’s a Ph.D. student and a Turkish citizen who’s in the U.S. on a student visa.

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It’s the latest shocking image in a series of shocking images we’ve been subjected to recently as the Trump administration — my friend Adam Gaffin of Universal Hub has simply taken to calling it “the regime” — tracks down international students who have been involved in some form of pro-Palestinian activism and targets them for deportation.

The only activity I have seen attributed to Ozturk that might have led to her being targeted is an op-ed she helped write calling on the university to recognize Israel’s actions in Gaza as “genocide” and to divest from Israel. You may agree or disagree; I mostly disagree, though I am appalled by the brutal manner in which Israel’s Netanyahu government has pursued its war against the terrorists of Oct. 7, 2023. But the First Amendment gives Ozturk an absolute right to speak and write freely, regardless of whether she’s a citizen.

According to accounts in The Tufts Daily student newspaper and Cambridge Day, thousands of protesters gathered in Somerville Wednesday night to show their support for Ozturk.

Cambridge Day reporter Jodi Hilton quoted Asli Memisoglu, a native of Turkey who graduated from Tufts in 1987, as saying: “One thing I’ve always cherished was the sanctity of free speech, but that’s threatened now.”

In The Tufts Daily, Emily Isaac, a Somerville resident, said: “People are always going to fight back. Everyone likes to say what they would have done during a historical atrocity, or during times of fascism, and I think it’s important to recognize the signs of when it’s happening.”

I wish I could say that Isaac was overstating matters.

Since Trump began his second term on Jan. 21, authoritarianism has descended upon us swiftly and mercilessly. Universities, law firms and public media organizations have all been targeted, and the people who are running them don’t know whether they should fight, surrender or find some sort of middle ground. Immigrants are whisked off to hellish prisons in El Salvador on the flimsiest of pretexes. Our country is quickly becoming unrecognizable.

On Threads last night, I saw a comment from someone who is definitely not a Trumper that, well, this is what people voted for. My response: Democracy without protection for individual rights is just another word for dictatorship.

We are in very bad shape, and the courts can only do so much.

Exhale: The Supreme Court turns down a chance to narrow or kill Times v. Sullivan

Wynn’s Encore casino in Everett, Mass. Photo (cc) 2024 by Dan Kennedy.

The Supreme Court on Monday turned down a chance to narrow or even throw out Times v. Sullivan, the 1964 ruling that provides the press with strong protections against libel suits. The court’s action was not entirely surprising, but it was heartening nevertheless.

The would-be challenge came about after former casino mogul Steve Wynn sued The Associated Press, claiming that its reporting on sexual misconduct he had allegedly engaged in during the 1970s was false and defamatory. Because Wynn is a public figure, he would have had to show the AP acted with “actual malice” — that is, that it knew its reporting was false or that it showed “reckless disregard” as to whether it was true or false. Wynn’s lawyers had sought to weaken the actual-malice standard.

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By declining to take up Wynn’s appeal, the Supreme Court indicated that no more than three of the nine justices are ready to revisit Times v. Sullivan, since it takes four justices to agree to hear a case. Clarence Thomas has previously written that he would overturn Sullivan in its entirety, while Neil Gorsuch would like to pare it back. Just recently, Brett Kavanaugh, though, went out of his way to affirm his support for Sullivan.

Since the court did not release a vote tally, we have no way of knowing whether or not Thomas and Gorsuch were joined by a third justice, or even if Thomas and Gorsuch themselves were willing to take the case. Perhaps they thought it was a poor vehicle for advancing their anti-Sullivan agenda. It would be nice to know, but that’s not how the court works.

Times v. Sullivan imposed the actual-malice burden only on public officials. Later rulings extended that to public figures. New York Times reporter David Enrich, in his new book, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” warned that the court might be willing to weaken Sullivan. Enrich wrote that “it is not hard to envision the Supreme Court substantially narrowing the scope of who classifies as a public figure or even ruling that the actual malice standard should only apply to government officials.”

Well, not yet, and not now. What will happen if and when a different case comes along is anyone’s guess.

The allegations of sexual misconduct against Wynn were originally reported in 2018 by The Wall Street Journal, which has published an archive of articles. According to the AP, Wynn reached an agreement with Nevada gambling officials in 2023 to exit the casino business and pay a $10 million fine without admitting any wrongdoing.

The Nevada Supreme Court described the AP story that drew Wynn’s ire as “a good-faith effort to inform their readers regarding an issue of clear public interest.”

A libel verdict against Greenpeace may destroy the organization — and weaken the First Amendment

Standing Rock protest in St. Paul, Minn. Photo (cc) 2016 by Fibonacci Blue.

Earlier this week, a North Dakota jury delivered a verdict on behalf of a large energy company that may destroy the environmental organization Greenpeace — and that could inflict significant damage on the First Amendment as well.

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According to reporters Jeff Brady and Alejandra Borunda of NPR, the jury ruled in favor of Energy Transfer, which built the Dakota Access oil pipeline, and which accused Greenpeace in a civil suit of libel, trespassing and other offenses. The jury awarded Energy Transfer $660 million, which Greenpeace officials have said could force the organization to cease operations.

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The Khalil arrest shows why we must protect ‘freedom for the thought that we hate’

The 1915 International Congress of Women in The Hague. Rosika Schwimmer is fourth from left. Photo via Wikipedia.

What is the First Amendment for? Quite simply, it is for protecting our right to express views that are unpopular or even offensive. There’s more to it than that, of course, and it’s not unlimited. But it surely is there to act as a shield for Mahmoud Khalil, a Palestinian activist who Donald Trump’s jackbooted thugs have arrested and who the administration is now trying to deport to — well, somewhere.

Khalil was involved pro-Palestinian activism at Columbia University last spring. As Philip Marcelo of The Associated Press reports, “The White House … claimed Khalil organized protests where pro-Hamas propaganda was distributed.” But Khalil also holds a green card, making him a permanent resident of the United States. Moreover, the First Amendment extends to anyone in the U.S., citizen or non-citizen, legal resident or undocumented immigrant.

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Nearly a century ago, Oliver Wendell Holmes Jr. had a few things to say about another non-U.S. citizen with unpopular views. Rosika Schwimmer was a Hungarian immigrant, feminist and pacifist who sought to become a U.S. citizen. She was turned down because she refused to take the oath of citizenship, believing that it obliged her to take up arms if ordered to do so — notwithstanding the reality that, as a woman, she would have been exempt from military service.

Her case ended up before the Supreme Court, which, in 1929, on a 6-3 vote, overturned an appeals court ruling in her favor. Justice Holmes wrote an eloquent dissent that is still invoked as a defense of the First Amendment’s true meaning. He said in part:

Some of her answers might excite popular prejudice, but, if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within, this country.

“Freedom for the thought that we hate” is a concise and compelling explanation of why the First Amendment matters, and it’s a phrase that we’ve all heard over and over again. Anthony Lewis even made it the title of one of his books.

And it’s why Trump is acting illegally and unconstitutionally in holding Mahmoud Khalil for deportation. Khalil has not been charged with a crime. He has not been accused of providing material assistance to Hamas. Rather, he is being singled out for his political views. And let’s be honest — Trump is doing this in a deliberate attempt to rekindle left-wing activism on behalf of the Palestinians in order to harm Democrats, universities and anyone else who stands in the way of his authoritarian project.

New York Times columnist Michelle Goldberg has called Khalil’s arrest the most significant threat to free speech since the Red Scare of the 1940s and ’50s. “If someone legally in the United States can be grabbed from his home for engaging in constitutionally protected political activity, we are in a drastically different country from the one we inhabited before Trump’s inauguration,” she wrote. And indeed, Trump has boasted that more arrests will follow.

Schwimmer, at least, was allowed to remain in the U.S. as a non-citizen. She eventually moved to New York City and died in 1948. Khalil’s fate has yet to be determined.

Powerful forces want to dismantle libel protections. These three books explain why it matters.

The U.S. Supreme Court. Photo (cc) 2020 by APK.

When the Supreme Court ruled in 1964 that news organizations need no longer fear ruinous libel judgments over small, inadvertent errors, it sparked an explosion of investigative reporting. A direct line connects the court’s decision in New York Times v. Sullivan — inevitably described as a “landmark” — and journalism that exposes government secrecy and corruption at the national, state and local levels.

Under Times v. Sullivan, a public official who sues for libel must show that a defamatory statement was made with “actual malice,” a term of art that means the statement was published “with knowledge of its falsity or with reckless disregard of whether it was true or false.” Later rulings extended actual malice to public figures.

But though Times v. Sullivan freed the press to uncover government lying in the Vietnam War and the Watergate scandal, the backlash began almost immediately. That backlash is the subject of a new book by New York Times reporter David Enrich called “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.”

“Murder the Truth” also prompts a look back at two earlier books that examine the historical and legal significance of the Sullivan decision — “Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan” (2023), by Samantha Barbas, and “Make No Law: The Sullivan Case and the First Amendment” (1991), by Anthony Lewis. It is Enrich’s book, though, that speaks to the urgency of this calamitous moment, as well as the fate of the free press during President Donald Trump’s second term.

Read the rest at Poynter Online.

In Mississippi, a censorious order is lifted, but questions remain; plus, press solidarity, and good news from GBH

The Mississippi judge who ordered a newspaper to remove an editorial from its website has reversed herself. But this is hardly a victory for freedom of the press.

Judge Crystal Wise Martin rescinded her temporary restraining order after the owner of The Clarksdale Press Register and the board of commissioners in that city agreed to settle a dispute that had resulted in a libel suit being filed. The commissioners agreed to drop the suit while Wyatt Emmerich, president of Emmerich Newspapers, said the paper will publish a less incendiary version of the editorial, according to Michael Levenson of The New York Times (gift link).

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That does not change the reality that Judge Martin leaped in to help city officials by censoring the newspaper, even though the First Amendment protects libelous materials from being subjected to prior restraint. Libel can, of course, be punished after the fact through a civil suit, although government agencies cannot sue for libel.

The editorial, headlined “Secrecy, Deception Erode Public Trust,” took city officials to task “for not sending the newspaper notice about a meeting the City Council held regarding a proposed tax on alcohol, marijuana and tobacco.”

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