The Mystic Valley Regional Charter School is back in the news for discriminatory behavior — this time for insensitive comments by a former trustee and flat-out racist remarks and disciplinary practices. The Boston Globe reports.
Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.
According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.
This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.
By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).
At a moment of national crisis over racism and police brutality, it is depressingly apt that our lead New England Muzzle Award this year concerns an African American teacher in Milton, Massachusetts, who was briefly placed on leave and investigated for telling her sixth-grade poetry students that some police officers are racist.
School officials in Milton quickly backtracked, and the teacher, Zakia Jarrett, received a considerable amount of public support. Nevertheless, it’s sad and telling that the school administration’s first impulse was to punish the messenger rather than focus on the uncomfortable truth of her message.
Other Muzzle Award winners this year include a judge who refused a prosecutor’s request that he drop minor charges against nonviolent protesters (for good measure, he also briefly jailed a defense lawyer for reading the law to him); the police department in Portland, Maine, whose officers made an intimidating visit to a critic’s home under the guise of what appear to be trumped-up vandalism charges; and a town official in Exeter, Rhode Island, who shepherded through an ordinance requiring that people attending public meetings act with “decorum.”
It’s probably not a good idea for us to talk about messing around with free speech on the internet at a moment when the reckless authoritarian in the White House is threatening to dismantle safeguards that have been in place for nearly a quarter of a century.
On the other hand, maybe there’s no time like right now.
Statement by the Faculty of the Northeastern University School of Journalism Denouncing Police Attacks on Journalists:
The recent attacks on journalists by police in American cities, including on Northeastern University alumni, are unacceptable and do great damage to our democracy. They also jeopardize the ability of citizens to inform themselves about not just the current wave of protests but also our nation’s history of racism, bigotry and police brutality. Our society thrives on the free flow of information and the check on governmental authority provided by a free press. The vital work of the free press must be allowed to go on without the threat of harm and arrest. We stand with all journalists documenting this difficult chapter in American history, especially those from communities of color. We call upon all levels of government to end attacks by police on journalists and the institution of journalism, and to protect the First Amendment rights of protesters.
Prof. Jonathan Kaufman, Director
Prof. Rahul Bhargava
Prof. Matt Carroll
Prof. Myojung Chung
Prof. Charles Fountain
Prof. Meg Heckman
Prof. Carlene Hempel
Prof. Jeff Howe
Prof. Dan Kennedy
Prof. Laurel Leff
Prof. Dan Lothian
Prof. James Ross
Prof. John Wihbey
Prof. Dan Zedek
The arrest and brief detention of a CNN crew on live television in Minneapolis early this morning was a stunning blow to the First Amendment. They were literally handcuffed and led away for doing their jobs in reporting on protests over the killing of George Floyd, a Black man, by a white police officer.
As the video reveals, the journalists were respectful, and correspondent Omar Jimenez clearly identified himself as a reporter. He told the state police officers several times that he and his crew would move wherever they were told.
That said, what happened to Jimenez and his colleagues was more common than you might realize — and more common than it should be. Last year, we bestowed a New England Muzzle Award upon Police Chief Armando Perez of Bridgeport, Connecticut for arresting and detaining Tara O’Neill, a reporter for Hearst Connecticut Media, during a Black Lives Matter protest.
“This is a public sidewalk and I’m the press,” O’Neill later recalled telling the officer who arrested her, according to media reports. “He said, ‘OK,’ and cuffed me.”
As with this morning’s Minneapolis arrests, the misconduct by police enabled them to operate without being watched by O’Neill and her pesky smartphone. Nevertheless, she was able to film her own arrest:
In a better-known case, Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly were arrested at a McDonald’s in Ferguson, Missouri, during the demonstrations in 2014 over the killing of Michael Brown, a young African American man, by a white police officer.
Before that, Josh Stearns, now director of the Public Square Program at the Democracy Fund, put together a massive compilation of social-media posts documenting the arrest of journalists at Occupy protests around the country. (Here is a very small slice of what was going on from the Committee to Protect Journalists.) Storify, a tool for aggregating social media, recognized Stearns’ efforts with a “Storify of the Year” award.
Unfortunately, Storify later shut down, taking much of Stearns’ work with it.
Update II. Noting that Jimenez is Black and Latino. A white CNN reporter standing nearby was not arrested.
CNN reporter Omar Jimenez, who is black and Latino, and his team were arrested by officers early this morning in Minneapolis. Not far away, CNN journalist Josh Campbell, who is white, says he was "treated much differently." https://t.co/1ZpqdyJON2pic.twitter.com/vPFLTx8UnK
For an aspiring autocrat like Hungarian Prime Minister Viktor Orbán, the COVID-19 pandemic has been a gift-wrapped opportunity to crack down on what’s left of his country’s free press.
Hungary’s parliament recently approved a state of emergency that allows Orbán to rule by decree. Among other things, journalists may be imprisoned for up to five years if they spread what the government considers to be misinformation about COVID-19. According to an anonymous journalist quoted in The Guardian, the measure began having its censorious effect even before it was voted on, as she learned after she called a hospital to ask about doctors who may have contracted the virus.
“A few minutes later,” she said, “the hospital’s chief communication officer called me back and asked if I think it’s a good idea to keep asking about this, a day before the government’s bill will be passed.”
Even as COVID-19 spreads disease, death and economic disruption across the world, it may also be contributing to repression in the name of protecting public health. The ominous developments are described in a new report by Reporters without Borders (known by its French acronym, RSF), which accompanies its annual World Press Freedom Index.
The index ranks countries on the basis of how much freedom journalists have to do their jobs and hold the powerful to account. According to RSF, the rankings have dropped several notches among countries that have suppressed the media as part of their response to COVID-19 — not just Hungary (now 89th), but also China (177th), Iran (173rd) and Iraq (162nd).
“The public health crisis provides authoritarian governments with an opportunity to implement the notorious ‘shock doctrine’ — to take advantage of the fact that politics are on hold, the public is stunned and protests are out of the question, in order to impose measures that would be impossible in normal times,” said RSF Secretary-general Christophe Deloire in a statement accompanying the report.
Cracking down on the media is not the only step governments are taking to stifle dissent. As The New York Times recently noted in a round-up of repressive responses to COVID-19, countries ranging from democracies such as Britain and Israel to more authoritarian states such as Chile and Bolivia have trampled on their citizens’ rights in the name of protecting public health. The measures include enhanced detention powers, increased surveillance and, in Bolivia’s case, postponing elections.
Draconian though those measures may be, threats to freedom of the press are uniquely dangerous because of its role as a monitor of power. Take that away and we have no way of knowing about the full extent of government repression.
Nor has the United States escaped the notice of RSF. Although its press freedom ranking of 45th is up slightly over last year, it still lags well behind Western European countries, in large measure because of President Donald Trump’s war against the media. Among other things, the report cites the Justice Department’s decision to file espionage charges against WikiLeaks co-founder Julian Assange as well as the “public denigration and harassment of journalists.”
Although RSF doesn’t mention it, the COVID-19 pandemic could accelerate the deterioration of press freedom in the U.S. In recent weeks President Trump has commandeered an hour or two of television time on many afternoons, using his bully pulpit, so to speak, to insult individual reporters when they try to ask tough questions. The media have been willing participants in their own delegitimization, with many outlets giving Trump free airtime and individual reporters rarely acting in solidarity.
There may be limits. As The Washington Post reported, a CNN reporter refused to move from her front-row seat on Friday after being ordered to do so by a White House official. Despite threats to involve the Secret Service, the White House apparently backed off. (Seat assignments are managed by the independent White House Correspondents Association.) And Trump — humiliated by the mockery he received after suggesting that people could ingest bleach to fight COVID-19 — vowed not to take part in any more press briefings. (By Monday, unsurprisingly, he was back at the podium.)
But though there is a buffoonish nature to Trump’s war against the press that sometimes makes it difficult to take him seriously, the fears raised by the pandemic and the economic catastrophe that has resulted could empower the president to take new measures against journalists, whom he regularly calls “enemies of the people.”
We may be in the midst of a well-meaning reduction in media access at the local level as well. Local officials, like all of us, are meeting via Zoom, which makes it more difficult for reporters to understand what’s going on and to ask questions. And when public officials try to be open, they run the risk of being Zoom-bombed. Just last week the New Haven Independent reported that the city’s board of alders got hit with child pornography. That same night, the Hamden legislative council had to shut down its meeting in the face of Zoom-bombers posting racist and homophobic slurs.
Zoom has security features, such as password protection and waiting rooms, that make it harder for trolls to break in. But that also makes it harder to live up to the letter and the spirit of open-meeting laws. The New England First Amendment Coalition recently urged that local officials delay crucial decisions until in-person meetings can be resumed, saying, “Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed.” But what if a month or two becomes six? Or 12? Or 18?
The pandemic is also accelerating the censorship of speech on Facebook and other internet platforms. According to an essay in The Atlantic by law professors Jack Goldsmith of Harvard and Andrew Keane Woods of the University of Arizona, this is actually a positive development, as, even before COVID-19, algorithmic tools were being brought to bear on “bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content.”
They add: “What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated ‘normal’ to return to. We live — and for several years, we have been living — in a world of serious and growing harms resulting from digital speech.” Or, as they put it elsewhere in their essay: “In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.”
Good Lord. That’s a lot to wrap our minds around. As Noah Rothman puts it in Commentary: “Much of Goldsmith and Woods’ argument glosses over the important consideration that the Chinese model is dependent on coercion.”
But I’m going to leave aside the larger debate about free speech and repression so that I can hone in on one small but vitally important issue that Goldsmith and Woods gloss over. We already live in a world in which most news consumption takes place online, and an ominously large percentage of that consumption is mediated by Facebook. If Facebook’s role as an arbiter of news is going to grow even more powerful, and if we’re going to applaud the Zuckerborg for eliminating speech that it deems harmful, it seems to me that we’re going to have a free-press problem that is exponentially larger than Reporters without Borders’ most dystopian vision.
Then again, for a lot of us, freedom isn’t all that it’s cracked up to be. According to a 2018 study by Elizabeth J. Zechmeister of Vanderbilt University, about one in four U.S. adults “believes a coup would be justifiable in times of high crime or high corruption.” Imagine to what heights that support might soar if we get into, say, September or October, and conditions continue to deteriorate.
Former Vice President Joe Biden, the likely Democratic presidential nominee, has already warned that President Trump might try to delay the November election. Would he try? Would he attempt to declare a state of emergency, as Hungarian leader Orbán has done? Would U.S. military leaders obey their commander-in-chief — or their oath to defend the Constitution?
Our liberties are fragile, and that is especially the case at a terrible moment like the one we’re living through. Can freedom of the press survive the pandemic? It’s already been seriously damaged in Hungary and elsewhere. And it’s going to require vigilance — and luck — for it not to be seriously damaged in America as well.
Back in those golden days of, say, early March, Pickard’s agenda would likely have been dismissed, at best, as intriguing but unrealistic and, at worst, as representing an unacceptable intrusion by government that would inevitably compromise journalism’s watchdog role.
But then came the instant recession caused by COVID-19 and, with it, alarmed calls for federal action to save journalism — especially local journalism, already in extremis. Among those demanding action: Washington Post columnist Margaret Sullivan; Craig Aaron, the co-CEO of the media-reform organization Free Press; and Steven Waldman and Charles Sennott, the co-founders of Report for America.
How bad is it? The news-business analyst Ken Doctor, writing at the Nieman Journalism Lab, reports that readership of newspaper websites is exploding — yet advertising is plummeting so quickly that losses are piling up. Every day, it seems, comes news of more papers eliminating print editions, cutting wages and laying off reporters. Which is actually the ideal set of circumstances for Pickard to make his argument that the contradictions of for-profit media have reached something of an endpoint. As an alternative, he proposes what he calls a “social democratic” model for journalism.
An associate professor of communication at the University of Pennsylvania’s Annenberg School, Pickard is a protégé of Robert McChesney and a former fellow at the aforementioned Free Press and the New America Foundation. The case he puts forth is that not only should government play a much bigger role in ensuring the health of journalism, but that the extreme market libertarianism that rules the media today is a relatively new phenomenon.
As Paul Starr (in “The Creation of the Media,” 2004) and others have before him, Pickard observes that the American press got an enormous boost starting in Colonial times by way of generous postal subsidies — a benefit that lasted until several decades ago, when market fundamentalists began demanding that the Postal Service cover its expenses.
Moreover, various regulatory efforts aimed at reducing commercialism in radio and television bore little fruit. By the late 1940s, Pickard says, they had pretty much run their course, and some of the forward-looking leaders of that era were pushed out of public service during the McCarthy-era crusade against progressives and reformers. “The alarm bells quieted, plans for bold reforms receded, and the status quo quietly but assuredly reasserted itself,” Pickard writes. “Nevertheless, it is important to recall that none of this was inevitable; it could have gone quite differently.”
One theme that Pickard turns to repeatedly is the idea that “positive rights,” as he calls them, should be regarded as important as “negative rights” when thinking about media policy. What are negative rights? As Pickard describes them, they protect a media owner from government regulation, something that has come to be seen in many circles as guaranteed by the First Amendment.
But negative rights matter a great deal, as they involve First Amendment protections such as the freedom not to be censored, protection against abusive libel cases and the right not to have limits put on political speech, including the endorsement of candidates. Unfortunately, endorsements are already endangered given the increasing prominence of nonprofit news organizations, which are prohibited from boosting candidates as a condition of keeping their tax-exempt status.
By contrast, positive rights, in Pickard’s formulation, involve the public’s right to a diverse, democratic media. Here’s how he describes it: “True inclusion means that communities are not only receiving high-quality news, but are also deeply engaged in the news-making process itself. Community members should be involved in the governing process and empowered to organize their own newsrooms and collaborate in participatory journalism. Community engagement in the news-making process is the best way to create a new kind of journalism, one that is accountable and trustworthy.”
This sounds worthy, but I’m concerned about what it would look like in practice. A strong news organization is often the result of one person’s vision, or that of a small group of people. Opening things up to democratic governance runs the risk of lowest-common-denominator journalism in which some members of the community demand that certain stories be covered, or not covered, because of individual or group sensitivities.
That’s a potential hazard with cooperatively owned news organizations, an idea that Pickard supports. I’m currently tracking The Mendocino Voice, a digital news outlet that is transitioning to the co-op model. I’m interested to see if they can pull it off, and I wish them well. But a healthy news ecosystem requires different models — for-profit, nonprofit, co-ops, volunteer projects and the like. On several occasions Pickard suggests that we’ve hit the limit with regard to for-profits and even traditional nonprofits. I’m not willing to go that far.
Where I would agree wholeheartedly with Pickard is that our public media system is woefully underfunded. Not only does Pickard document the exponentially greater sums spent on public television and radio in virtually every other Western democracy, but he also comes up with the perfect anecdote to illustrate his point: he tells us the federal government’s annual contribution to PBS — about $445 million a year — is considerably less than the $626 million the Pentagon spends on its public-relations office.
A well-funded PBS and NPR, insulated from political pressure, Pickard says, could go a long way toward solving the local-news crisis by ramping up coverage of communities that have been abandoned by legacy newspapers.
“Transforming the U.S. media system into a democratic force,” Pickard writes in conclusion, “requires a robust policy program of regulating or breaking up information monopolies, creating public alternatives to commercial news media, and empowering media workers, consumers, and communities to engage with and create their own media.”
The journalism crisis has been with us for a decade and a half, and it’s only become more acute over time. The coronavirus pandemic underscores two realities: we need local news, and there may be no reliable way to pay for it through traditional market forces.
Pickard outlines one set of possible solutions. Policymakers would do well to consider his ideas — and to act before the news we need to govern ourselves becomes one more victim of the virus that is currently upending our way of life.
Florida Gov. Ron DeSantis’ decision to bar a reporter for the Miami Herald and the Tampa Bay Times from a news conference that was otherwise open to the press was a flat-out violation of the First Amendment.
Although the question of whether public officials can ban specific journalists from media events has never been taken up by the Supreme Court, a 1974 federal district court ruling is generally regarded as good law. I wrote about it a few years ago when a similar situation arose in New Hampshire.
Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:
A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.
But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.
Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.
So now President Donald Trump’s re-election campaign is filing SLAPP suits against news organizations — that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.
The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaign’s tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?