Category Archives: First Amendment

Why NH’s ban on ballot selfies threatens free expression

Illustration by Brendan Lynch for WGBHNews.org.

Illustration by Brendan Lynch for WGBHNews.org.

The more absurd the law, the more difficult it can be to drive a wooden stake through its heart—all the more so when that law clashes with our First Amendment right to free expression.

And so it is with a New Hampshire statute that prohibits so-called ballot selfies, a self-indulgent genre that arose from our self-indulgent age. The idea is to vote, take a picture of yourself with your marked ballot, and then post it to Twitter, Instagram, Facebook, or any other social network of your choosing. Do it in the Granite State and you could be fined $1,000.

Read the rest at WGBHNews.org.

No, the Hulk Hogan verdict doesn’t threaten free speech

Hulk Hogan with a fan in 2008. Photo (cc) by Rene Passet.

Hulk Hogan (or more likely an impersonator) with a fan in 2008. Photo (cc) by Rene Passet.

Based on my layman’s understanding, it seems to me that the $115 million verdict against Gawker in the Hulk Hogan case fits neatly within existing privacy law. I don’t see how it sets any precedent or poses a threat to the First Amendment.

One question that’s worth asking: Will the verdict have a chilling effect on publishers? I don’t see how. In fact, I don’t think any reasonable person would have thought that he or she could publish a video without permission of someone having sex and not risk serious legal action. Gawker is an outlier. Even observers not familiar with Gawker should have understood that there’s something deeply dysfunctional at a news organization whose former editor jokes about child pornography at a deposition.

Our modern understanding of privacy law is rooted in Samuel Warren and Louis Brandeis’s 1890 Harvard Law Review article “The Right to Privacy.” It’s not that long, and it’s a good read. The first of Warren and Brandeis’s six principles—newsworthiness—is what Gawker hung its hat on in its defense. “The right to privacy does not prohibit any publication of matter which is of public or general interest,” Warren and Brandeis write.

Gawker sought to stretch the boundaries of “public or general interest” way past the breaking point. Yes, Hulk Hogan is a public figure, which means he has fewer privacy rights than most of us. And yes, he bragged about his sexual prowess. But it doesn’t follow that it’s therefore OK to post a video of him having sex without getting his and his partner’s permission, regardless of whether he knew he was being recorded.

Legal experts are all over the place, of course, but Daniel Solove, a privacy expert and George Washington University Law professor, begins a commentary in The New York Times with this:

Gawker’s posting of the Hulk Hogan sex video is not speech that the First Amendment right to free speech does or should protect. Sex videos, nude photos and revenge porn—even of famous people—are not newsworthy. They are not of legitimate public concern.

Gawker founder Nick Denton will appeal, and it’s possible that he’ll win. If the verdict stands, though, it should serve as nothing more than a common-sense reminder that though the First Amendment’s protections are vast, they are not limitless.

Note: A Media Nation reader writes: “I am 99.9 percent sure that is not Hulk Hogan in the photo.” She may be right, and I’ve edited the caption accordingly.

Northeastern j-students expose flaws in public records law

Screen Shot 2015-12-28 at 9.06.13 AM

Still from a video produced by Northeastern journalism students. Click on the Globe version of the story to view it.

Our journalism students at Northeastern made a big splash over the weekend. Professor Mike Beaudet’s investigative reporting class partnered with The Boston Globe and WCVB-TV (Channel 5) to produce a story showing that the majority of the state’s 351 cities and towns failed to respond to public records requests.

Here is the Globe version of the story, written by staff reporter Todd Wallack. Here is the WCVB version, helmed by Beaudet, who was recently hired as an investigative reporter at the station.

Despite an intense focus on the state’s extraordinarily weak public records law (here is a letter written earlier this year by the Northeastern School of Journalism faculty and published by the Globe, the Boston Herald, and GateHouse Media community newspapers), 2015 is drawing to a close with the Massachusetts House having passed an inadequate reform bill and the Senate not having acted at all.

Let’s hope that in early 2016 the Senate fixes what the House got wrong. And congratulations to our students on a great job.

A journalist fights the power for public information

P.E. PVD HEADSHOT WEYBOSSET smallBy Philip Eil   

For more than three and a half years I’ve been fighting to access evidence from a trial that sent a man to prison for four consecutive life terms. The defendant in that case—Dr. Paul Volkman, the “Pill Mill Killer,” the “largest physician dispenser of Oxycodone in the US from 2003-2005”—went to college and medical school with my dad, and I’m trying to write a book about him.

Now, it might sound odd that I, or anyone in this country, would have to fight for access to trial evidence that’s already been shown in open court. Doesn’t the Sixth Amendment guarantee all citizens a public trial? Haven’t landmark court decisions established that trial evidence can’t be un-published? And, if all else fails, doesn’t the Freedom of Information Act (FOIA) offer transparency insurance? After all, no one administering the law with President Obama’s 2009 “presumption in favor of disclosure” memo in mind would withhold previously published trial evidence, would they?

The answer to each of these questions is “You would think so.” But more than four and a half years after Volkman’s trial ended (the verdict was delivered May 10, 2011, a date tattooed on my brain), the vast majority of the evidence hasn’t been released. Judges, clerks, and prosecutors have all denied my requests. And when I filed a FOIA request with the Department of Justice in February 2012, the events that ensued were, in the words of MuckRock, a “nightmare.” That’s why—with the help of the Rhode Island ACLU and pro bono attorneys Neal McNamara and Jessica Jewell from Nixon Peabody—I’m suing the Drug Enforcement Administration.

In a sense, my case revolves around a simple question: can the government seal off a trial—in this case, for reasons related to medical privacy—once the jury has been dismissed and the defendant hauled to prison? I say “No.” The government, apparently, says “Yes.”

And, for now, let’s stick with the theme of simplicity. Because, as this lawsuit trudges on, there’s really only one document you need to see. It’s a 62-page packet filed “for review and consideration by the Sixth Circuit Court of Appeals” by the Ohio US attorney’s office on February 19, 2013.

In February of 2013, Volkman was fighting to have his conviction overturned, while the Ohio US attorney (the office that had successfully prosecuted him) was fighting to make sure the conviction stuck. With this 62-page packet, prosecutors presented a curated selection—16 exhibits, out of more than 200 shown at trial—of their most powerful evidence. Unlike any of the other trial exhibits, the packet was uploaded to PACER, making it accessible to the public.

That’s worth repeating: by submitting this packet to the appellate court, prosecutors published trial evidence. And they did so with very few redactions. Only a handful of black bars appear in the packet to cover Social Security numbers and birthdays on death certificates, and—curiously—the last name of one of Volkman’s victims (but not three others) on prescription slips and medical-exam reports. Mostly, the trial exhibits are published in their pristine, un-redacted natural state.

Mind you, these are the same prescription slips, death certificates, and reports that were withheld or aggressively redacted when I asked the DOJ for them in 2012. And these are the same prescription slips, death certificates, and reports that the Rhode Island US attorney (which is handling the lawsuit for the DEA) withheld or aggressively redacted when the office attempted to settle my case with two new “releases” on July 29 and August 31, 2015.

Which brings me to the one thing to remember about my case. Even if you ignore the Sixth Amendment, pro-courtroom-transparency court decisions, and Obama’s “presumption in favor of disclosure” FOIA memo, the government’s stance in this case still doesn’t make any sense. Because, as the 62-page packet from 2013 shows, the government is currently defending a privacy line they’ve already broken.

Four and a half years is a long time to wait for the release of this trial evidence. And I’ve come to view my FOIA case as a symbol of a lot of things: bureaucratic incompetence; Obama-era bullying and intimidation of journalists; and the disturbing fact that the US government, in 2015, can’t live up to some of this country’s founding principles. But, as with so many governmental failures, this is also a story about wasted taxpayer dollars. After receiving my FOIA request in 2012, DEA employees spent untold hours painstakingly redacting pages of trial evidence that had already been shown in open court. (Six hundred seventy-four days passed between my first partial FOIA-response release in May 2013, and my last, in March 2015.) And, right now, it seems there are people in the Rhode Island US attorney’s office working to make sure this previously published evidence (a chunk of which was re-published, in 2013) doesn’t see the light of day.

These are not top-secret documents. This is evidence that sent a man to prison. This is evidence from a case that traveled all the way to the US Supreme Court. This is evidence that was presented in every US citizen’s name, since we were all plaintiffs in “the United States of America vs. Paul Volkman.” Welcome to the “most transparent administration in history.”

Philip Eil is a freelance journalist and former news editor at the now-closed Providence Phoenix. His work has appeared in publications including The Atlantic, Vice, Salon, Rhode Island Monthly, and the Jewish Daily Forward. Email him at philip dot edward dot eil at gmail dot com and find him on Twitter at @phileil.

Public-records reform: Start with weak tea; add water

Judging from the tone of coverage, it’s hard to tell whether the Massachusetts House’s unanimous approval of public-records reform legislation Wednesday was a step forward or a setback. But it sounds like the already-watery bill under consideration has been diluted still further.

Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association and a staunch advocate of reform, is everywhere, telling Andy Metzger of the State House News Service that the bill is “a mixed bag”; lamenting in an article by Todd Wallack of The Boston Globe, “My concern is that the bill had just introduced an awful lot of ambiguities”; and describing the legislation as “one step forward and one step back” in an article by Shira Schoenberg of MassLive.com.

The problem is that even though Massachusetts’ public-records law is among the worst in the country (the Center for Public Integrity recently gave the state an “F” for public access to information), the bill passed by the House both giveth and taketh away. Here’s Wallack:

The legislation includes a measure designed to reduce the fees for copies. It orders government agencies to publicly designate someone to handle public records requests, and it gives citizens the opportunity to potentially recoup their legal fees if they successfully sue to obtain records….

But the bill also gives agencies significantly more time to respond to requests, allows them to outsource some requests to vendors, and did not go as far as some advocates had hoped to rein in labor charges and penalize officials who flout the law.

The bill also continues to exempt the governor’s office, the judiciary and the Legislature itself from the provisions of the law. A commission is going to study that — although, needless to say, it would be a major surprise if we ever heard about it again.

The only hope now is that the Senate will strengthen the legislation when it comes up for consideration early next year. The danger is that Gov. Charlie Baker will sign a weak bill into law, officials will pat themselves on the back for a job well done, and meaningful reform will be put off for another generation.

There’s nothing unusual about contempt for journalism

This may surprise you, but I think my fellow First Amendment advocates are overreacting to the video of University of Missouri professor Melissa Click going off on Mark Schierbecker, who was shooting video of protesters confronting Tim Tai, a student photographer who bravely stood his ground in the face of intimidation.

Click has come under fire for yelling, “Who wants to help me get this reporter out of here? I need some muscle over here.”

My lack of apoplectic outrage does not derive from support for Click’s actions; far from it. Rather, my views are based on what appear to be Click’s ordinary — as opposed to extraordinary — contempt for the role of journalism in documenting public events.

Part of the anger directed toward Click comes from earlier, erroneous reports that she is a journalism professor. In fact, she is an assistant professor of mass media in Mizzou’s communication program, and she has produced numerous academic articles about pop culture. For instance, here is the title of a 2013 journal article she co-authored: “Making Monsters: Lady Gaga, Fan Identification, and Social Media.” She earned her Ph.D. from the Department of Communication at UMass Amherst.

(I also see that she has some sort of affiliation with Mizzou’s School of Journalism. But based on the bio I’ve linked to above, which includes her C.V., it does not appear that she teaches any journalism classes. I hope not.) [Update from the comments: Click’s “courtesy appointment” in the j-school is being reviewed.]

I’m also not moved by the argument that, as an employee of a public university, she was legally obligated to protect Schierbecker’s First Amendment rights. I’d argue instead that she was exercising her own First Amendment rights, and that the threat implicit in her “muscle” comment hardly rises to the level of incitement.

Possibly the most disturbing aspect of Click’s outburst is that a fortysomething professor would become so emotionally involved in a student protest. But I’m not here to psychoanalyze her.

If Click were a journalism professor, I’d join with those saying she should be fired. As it stands, though, I think an apology would be sufficient.

The heat is on (again) to reform the state’s public-records law

Photo of the Massachusetts Statehouse (cc) by Tony Fischer.

Photo of the Massachusetts Statehouse (cc) by Tony Fischer.

Remember those golden days of last spring, when it looked like the Massachusetts Legislature might actually take some steps to fix the state’s broken public-records law? The effort was derailed, unfortunately, as opponents — including the Massachusetts Municipal Association, a lobbying organization for the state’s 351 cities and towns — argued that the proposed changes amounted to an unfunded mandate.

Now advocates for open government are gearing up again. The Boston Globe has been especially strong the past few days, reporting that the State Police have been fighting against reform for undisclosed reasons (secret reasons for preserving secrets?) and that the Center for Public Integrity has once again awarded the state an “F” for its current public-records law, once of the worst in the country. (Here’s the report card.) The paper editorialized in favor of passage as well.

The Boston Herald published a strong editorial on Oct. 24 (which makes mention of the State Police’s opposition) and an Associated Press story on Oct. 31.

The Patriot Ledger of Quincy, among the largest of GateHouse Media’s more than 100 community newspapers in Eastern Massachusetts, had this to say in an editorial posted over the weekend:

If there are good arguments against making public records more easily available to the public, let’s bring them out of the legislators’ private offices and debate them on the floor of the House and the Senate. It’s time legislative leaders keep their promises and bring public records reform up for a vote.

The Gloucester Times, part of the CNHI-owned Eagle-Tribune group in the northeast part of the state, editorialized in favor of reform last week.

Needless to say, reform is long overdue. It’s long past time for the Legislature and Gov. Charlie Baker to fulfill their promises for more transparent government in Massachusetts.