Category: First Amendment

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%.

Become a supporter of Media Nation for just $5 a month. You’ll receive a weekly newsletter with exclusive content and help to support this free source of news and commentary.

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.

Amid political violence and threats of violence, the NH Libertarians target Harris

Then-Sen. Kamala Harris. Photo (cc) 2019 by Gage Skidmore.

No sooner had I uploaded a post about Donald Trump, JD Vance and whether their promotion of lies about pet-eating immigrants amounted to incitement than we were treated to an example of something closer to actual incitement.

On Sunday, the Libertarian Party of New Hampshire posted on Twitter/X: “Anyone who murders Kamala Harris would be an American hero.” According to NBC 10 Boston, they took the post down a short time later — not because they had any second thoughts, mind you, but because “we don’t want to break the terms of this website we agreed to. It’s a shame that even on a ‘free speech’ website that libertarians cannot speak freely. Libertarians are truly the most oppressed minority.”

The Boston Globe looked into it as well and reported:

In response to a request for comment, a spokesperson for the state’s Libertarian Party said the organization “believes that the journalists at the Boston Globe are as evil as rapists or murderers.”

“A proper society would exclude Globe Journalists from residing within it entirely,” Jeremy Kauffman wrote in an email.

Good Lord. I was actually aware of all this Sunday morning but refrained from writing anything because I couldn’t be sure if the Libertarians’ Twitter account had been hacked. Now we know that they’re proud of their hateful, dangerous rhetoric. It will be interesting to see whether there are any legal repercussions given that the threat against Harris comes closer to the legal definition of incitement than anything Trump or Vance said. Then again, it may still fall short of the imminent-threat language contained in Brandenburg v. Ohio.

Also on Sunday, a would-be assassin was taken into custody at Trump’s Florida golf course just two months after he was shot at during a rally in Pennsylvania.

And, finally, the U.S. Justice Department has charged two alleged neo-Nazis of publishing an assassination “hit list” whose potential targets included former U.S. Attorney Rachael Rollins.

We are living through a terrifying moment, and it’s not going to end on Election Day.

Trump and Vance are inciting threats and possible violence. Here’s why they’ll get away with it.

JD Vance: “Keep the cat memes flowing.” Photo (cc) 2023 by Gage Skidmore.

Over the past week, former President Donald Trump and his running mate, Ohio Sen. JD Vance, have been inciting threats and possible violence against the Haitian community in Springfield, Ohio, by advancing false claims that Haitian immigrants are grabbing people’s pets off the street and eating them.

Unfortunately, there’s not much that can be done to bring Trump and Vance to heel. As I’ve written before, there is virtually no enforceable law against incitement in the U.S., even though it’s one of just three categories of speech that may be censored, the others being serious breaches of national security and obscenity.

Become a supporter of Media Nation for just $5 a month. Supporters receive a weekly newsletter with exclusive content.

Although lies about pet-eating had been moving through the nether reaches of the online right for a while, Trump super-charged those lies last Tuesday in his disastrous (for him) debate against Vice President Kamala Harris. Here, again, is what he said: “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there. And this is what’s happening in our country. And it’s a shame.”

Trump wasn’t clear about who “they” are, but the false rumor pertains to undocumented Haitian immigrants. Never mind that the vast majority of Haitian immigrants who live in Springfield are there legally. Continue reading “Trump and Vance are inciting threats and possible violence. Here’s why they’ll get away with it.”

NH Supreme Court throws out libel suit brought by man accused of espousing white supremacy

New Hampshire Statehouse in Concord. Photo (cc) 2011 by Teemu008.

The New Hampshire Supreme Court has ruled that an op-ed piece published in the New Hampshire Union Leader claiming that a resident of Hanover had espoused “white supremacist ideology” was not libelous. The reason: the writer was expressing an opinion rather than making a factual assertion.

According to Grace McFadden of New Hampshire Public Radio, the plaintiff, Daniel Richards, sued the Union Leader and op-ed writer Robert Azzi for a piece that Azzi wrote in 2021 lumping Richards with former Republican politico Newt Gingrich and several others. Azzi castigated them for trying to keep anti-racist instructional materials out of the public schools. (Note: NHPR renders the plaintiff’s name as “Richard,” but it appears as “Richards” in the original op-ed and in court documents.) The passage at issue:

Desperate to stay bonded to America’s original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology to keep Americans from learning an unexpurgated American history from its 1619 origins alongside the dominant White 1776 narrative.

Richards appealed to the state’s highest court after losing at a lower level. Richards had attracted Azzi’s attention by submitting public testimony in favor of a bill prohibiting some classroom discussions about race, according to the NHPR story. The bill passed but was later thrown out by a federal court judge. The state Supreme Court said in its ruling:

Reading the op-ed as a whole, we agree with the trial court that the op-ed merely expressed the author’s political opinions and beliefs that he individually held about the plaintiff and others not based on any undisclosed defamatory facts.

Azzi and the Union Leader were assisted in their defense by way of an amicus brief from the ACLU of New Hampshire, the New England First Amendment Coalition and GLBTQ Legal Advocates & Defenders.

It’s a basic part of libel law that opinion is protected speech. Although it’s possible to run afoul of the law by stating a false fact within an opinion article, opinions are not by themselves actionable. As an illustration of that principle, the Supreme Court approvingly quoted the ruling by the lower court, which found that Azzi’s op-ed could not be found libelous because “whether a statement espouses white supremacist ideology is a matter of socio-political opinion that differs between individuals.” Yet the very fact that this case has been hanging around since 2021 shows how even futile legal actions can chill free speech and the free press.

As Gilles Bissonnette, legal director of the ACLU of New Hampshire, put it in a statement: “People and the press — despite pressure and intimidation from those with financial resources who vehemently disagree with them — have a First Amendment right to voice their opinion without fear of litigation from those who seek to stifle criticism.”

Richards also sued for invasion of privacy, and that claim was thrown out as well.

Become a supporter of Media Nation for just $5 a month.

The Internet Archive loses its appeal to lend e-books without permission

The Library of Alexandria via Wikimedia Commons

The Internet Archive has lost again in its bid to continue offering access to e-books for free and without any compensation to publishers or authors.

The U.S. Court of Appeals for the Second Circuit, based in New York, ruled on Wednesday that U.S. District Court Judge John Koeltl had acted correctly in finding for four major book publishers who sued the Archive for copyright infringement. Emma Roth has the story at The Verge.

The nonprofit Archive is one of the most useful corners of the internet, offering free access to web pages that otherwise would have disappeared and working with copyright holders to keep defunct publications available for viewing — such as, for example, The Boston Phoenix, one of my former haunts.

But the Archive chose a very odd hill to defend by insisting that it had a right to offer e-books without paying for a license from publishers, as libraries typically must do. The Archive claimed that it was in compliance with copyright law because it limited e-book borrowing to correspond with physical books that it had in its collection or that was owned by one of its partner libraries. That’s not the way it works, though.

Please support this free source of news and commentary by becoming a member for just $5 a month. You’ll receive a weekly newsletter with exclusive early content and other goodies.

As the appeals court’s decision observes, public and academic libraries must purchase licenses for e-books even though they also hold physical copies of those books. “Critically, IA [the Internet Archive] and its users lack permission from copyright holders to engage in any of these activities,” according to the decision. “They do not license these materials from publishers, nor do they otherwise compensate authors in connection with the digitization and distribution of their works.”

The Archive claimed a fair-use exception to copyright law, a four-part test that the courts apply to determine whether copyrighted material can be used without permission. The court ruled in favor of the publishers on all four tests, mainly because the Archive had copied books in their entirety rather than just excerpts and because that practice could harm the potential market for those books. The decision concludes with some fairly harsh language:

IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.

The Archive has responded by removing some 500,000 books from its online library, explaining:

We understand that this is a devastating loss for our patrons, and we are fighting back through the courts to restore access to these books. Fortunately, other countries and international library organizations are moving to support controlled digital lending. We appreciate your patience and understanding as we fight this long battle.

I’m not sure what legal steps are available to the Archive other than appealing to the Supreme Court. Given that both Judge Koeltl and the Court of Appeals simply applied existing copyright law in a straightforward manner, it’s hard to imagine that the Supremes would be interested unless they possess some previously undetected enthusiasm for upending the law in its entirety.

My views should not be taken as a value judgment. The folks at the Internet Archive have always been among the good guys of digital culture — one of the last pure outposts from the early days of internet idealism, along with Wikipedia and very few others. The giant book publishers simply want to maximize their profits, and authors are not going to benefit from Wednesday’s decision outside a few bestselling behemoths at the top. Journalist Dan Gillmor put it this way on Mastodon:

Others have said this, but the Internet Archive’s appeals-court loss to Big Publishing is a disaster for everyone but the cartel of companies and a tiny number of A list authors.

The publishers will tolerate libraries only as long as they can control everything about how books can be loaned. If public libraries were being invented today, the cartel would make their core functions illegal.

The problem, though, is that it is the job of judges to apply the law, not offer a critique of capitalism.

There’s nothing in The Verge story or the Court of Appeals’ decision specifying what penalties the Archive will have to pay. I hope there are none. And though it’s probably too much to hope that the publishers will rethink their approach to e-books in their moment of triumph, they really ought to make some changes.

Digital distribution should have led to an increase in the availability of knowledge. Instead, it’s led to a regime of top-down control that is more restrictive than what prevails in the world of physical books. Try lending an e-book to a friend. That may be one of the reasons that e-books are declining in popularity while physical books are on the upswing.

All of this is playing out at a time when artificial intelligence companies are being sued for gobbling up vast quantities of text without permission. As Kate Knibbs writes for Wired:

The new verdict arrives at an especially tumultuous time for copyright law. In the past two years there have been dozens of copyright infringement cases filed against major AI companies that offer generative AI tools, and many of the defendants in these cases argue that the fair use doctrine shields their usage of copyrighted data in AI training. Any major lawsuit in which judges refute fair use claims are thus closely watched.

Needless to say, AI companies like ChatGPT, Meta and their ilk have far more power and resources at their disposal than a struggling nonprofit like the Internet Archive.

Earlier:

A.G. Sulzberger on how Donald Trump threatens freedom of the press

Donald Trump’s anti-free press, anti-First Amendment agenda follows a playbook (free link) designed in Hungary, India and Brazil, writes New York Times publisher A.G. Sulzberger in — uh, The Washington Post. Key excerpt:

As they seek a return to the White House, former president Donald Trump and his allies have declared their intention to increase their attacks on a press he has long derided as “the enemy of the people.” Trump pledged last year: “The LameStream Media will be thoroughly scrutinized for their knowingly dishonest and corrupt coverage of people, things, and events.” A senior Trump aide, Kash Patel, made the threat even more explicit: “We’re going to come after you, whether it’s criminally or civilly.” There is already evidence that Trump and his team mean what they say. By the end of his first term, Trump’s anti-press rhetoric — which contributed to a surge in anti-press sentiment in this country and around the world — had quietly shifted into anti-press action.

Former Kansas police chief hit with felony charge; plus, some local news developments

Photo (cc) 2024 by Grace Hills / Kansas Reflector

File this under “the wheels of justice grind slowly”: The former Kansas police chief who ordered an illegal raid against a newspaper office and two private homes one year ago has been charged with felony obstruction of justice.

According to The Associated Press:

The single charge against former Marion Police Chief Gideon Cody alleges that he knowingly or intentionally influenced the witness to withhold information on the day of the raid of the Marion County Record and the home of its publisher or sometime within the following six days.

For those of you who have been following this case from the start, the charge pertains to a restaurant owner whose driving records were obtained by the newspaper. The records were obtained legally, and the paper never actually wrote about them, but Cody claimed the paper violated the law because of a statutory quirk. It later turned out that the Record was investigating Cody’s wrongdoing at his previous job — something that was entirely unrelated to the restaurant owner.

Last month, former Record reporter Deb Gruver reached a $235,000 settlement in her federal lawsuit against Cody, whom she accused of grabbing her cellphone and injuring her hand.

Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.

Here are a few other developments on the local news front:

  • In New York City, WCBS-AM is ending its 60-year run as an all-news station, a move that The New York Times reports will claim 23 jobs. The station’s owner, Audacy, will continue with an all-news format on WINS-FM. New York is also the home of WNYC-FM, a large public station devoted to news and information.
  • Times Media Group, a newspaper chain based in Tempe, Arizona, has gone on a rampage of cuts at four weekly papers and a semi-monthly that it acquired in Southern California recently. Thomas Corrigan, who writes the Inland Empire MediaWatch newsletter, reports that editors at three of the weeklies have been fired and that the new owner has cracked down on freelance expenses as well. Corrigan observes that the papers will “lose years of institutional and community knowledge.”
  • Michael Aron, regarded as the dean of New Jersey’s press corps, has died at the age of 78. Aron spent the latter part of his career as a political reporter at  NJ Spotlight News, one of the projects that Ellen Clegg and I write about in our book, “What Works in Community News.”

Settlement reached in lawsuit over an illegal police raid against a Kansas newspaper

The fallout continues from an illegal police raid on a Kansas newspaper and two private homes last August. According to The New York Times, Deb Gruver, a former reporter for the weekly Marion County Record, has reached a $235,000 settlement as part of her federal lawsuit accusing then-Police Chief Gideon Cody of grabbing her cellphone and injuring her hand.

The Associated Press reports that Gruver’s lawsuit against two other officials continues. Nor is that the only legal action under way. Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.

Previous coverage.

Leave a comment | Read comments

 

A Vermont state trooper, a middle finger — and, voilà, a New England Muzzle Award

Retired Vermont State Police Sgt. Jay Wiggen

Among the most toxic behaviors that we often see in police officers is the tendency of some of them to overreact if they think they’re being disrespected. What they deserve, as public servants doing a difficult and dangerous job, is our cooperation. That doesn’t mean we have to like it.

Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a recent account in The New York Times, in February 2018 Riggen pulled over a driver named Gregory Bombard — twice — for giving him the finger. Bombard denied it, but then did, in fact, flip off Riggen and cursed. Bombard was arrested and charged with two counts of disorderly conduct, charges that were later dismissed.

It got worse. The Times story, by Sara Ruberg continues:

According to the lawsuit, which was filed in 2021, the police circulated Mr. Bombard’s mug shot to local news outlets after his arrest and towed his car from where he had pulled over. Lawyers representing him said that last Christmas the state police issued another citation ordering him to be arraigned on a disorderly conduct charge in connection with the 2018 episode after the dashcam footage of his arrest was circulated and the police received public pushback.

Bombard last month received a $175,000 settlement. And Riggen, who retired at the end of May, is receiving a New England Muzzle Award.

An account by Juan Vega de Soto for the nonprofit news outlet VTDigger includes some other details. After pulling Bombard over, Riggen admitted that he was probably wrong in thinking that Bombard had flipped him the bird — not that it should have mattered. Vega de Soto writes:

In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE [the Foundation for Individual Rights and Expression] made the dash cam footage of the arrest public late last year.

In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”

As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.

In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”

Bombard sued with the help of the Vermont ACLU and FIRE. As FIRE senior attorney Jay Diaz put it in a statement: “We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech.”

Now, admittedly, Bombard’s response to Riggen was not exactly the smartest thing he could have done. But it was protected by the First Amendment, and Riggen should have acted accordingly instead of punishing Bombard for failing to show him the respect his mistakenly thought he was entitled to.

Leave a comment | Read comments