As Washington Post media reporter Paul Farhi points out (free link), while it is illegal to leak grand jury information, it is not illegal for a news outlet to publish a story based on that leaked information. An outrageous breach of the First Amendment in Atmore, Alabama, where a reporter and the publisher of the weekly Atmore News face criminal charges for committing journalism.
Category: First Amendment Page 1 of 28
A New Hampshire newspaper publisher who faces criminal charges for not properly labeling political advertising went on trial on Wednesday. Great lead by Damien Fisher in InDepthNH.org: “Debra Paul didn’t use the magic words, and now the community newspaper publisher is facing jail time.” If Judge Kerry Steckowych finds Paul guilty of the six criminal charges against her, he could fine her $12,000 and sentence her to six years in prison. Obviously that would be piling an outrage on top of an absurdity, but we shall see.
Previous coverage:
- The NH political-ad story is getting weirder and weirder (Aug. 28, 2022)
- Here’s the arrest warrant in the NH illegal-advertising case (Aug. 25, 2022)
- A NH newspaper publisher is arrested and charged with running illegal political ads (Aug. 25, 2022)
In Marblehead, a number of teachers and other school staff members recently showed up at a school committee meeting to complain about public records requests filed by a nonprofit news organization that covers the town. In Waltham, the city solicitor issued what amounted to a pre-election gag order, advising city officials who were running for re-election that if they participated in candidates forums they should not address pending municipal business. These two attempts to shut down discussion of important community issues have earned the perps our latest New England Muzzle Awards (see explanation here).
First, let’s take a look at what’s going on in Marblehead. According to Ryan Vermette of the Marblehead Weekly News, the co-presidents of the teachers union, the Marblehead Education Association, said at a school committee meeting that public records requests submitted by Marblehead Current reporter Leigh Blander were costing the town money and creating a stressful situation for their members. Vermette’s article begins:
The library at Marblehead High School was standing room only at the start of the School Committee’s meeting last Thursday night as dozens of district staff stood with committee members against what they alleged was an excessive amount of Freedom of Information (FOIA) requests from a local newspaper.
“Not only does this waste significant time and resources for the district, but it causes significant stress for our educators, who become the subject of these investigations, and their reputations come under attack,” Vermette quoted co-president Jonathan Heller as saying. “While the number of incidents is relatively small to date, the threat they represent is apparent.” The other co-president, Sally Shevory, was not quoted in the story.
Now. for some background, because this is a little complicated. The for-profit Marblehead Weekly News, published by The Daily Item of neighboring Lynn, is one of three independent news outlets covering the town. The Marblehead Current, where Blander works, is a nonprofit. The third, Marblehead Beacon, is a for-profit; oddly enough, Jenn Schaeffner, a founder, editor and reporter for the Beacon is also a member of the school committee. Beacon articles about the school system are appended with this: “She [Schaeffner] is recusing herself from Marblehead Beacon’s coverage of the School Committee and anything pertaining to Marblehead Public Schools.” As best as I could tell, the Beacon has made no mention of the public records issue.
Marblehead has been beset by several controversial issues involving the school system recently, including a heavily scrutinized statement by the superintendent about the war between Israel and Hamas; a bullying investigation involving a former high school soccer coach; and possible disciplinary issues involving a former superintendent. If you’d like, you can read all the details in a Current editorial responding to the public records matter. What’s relevant is that the Current is being called out by union leaders and school officials for trying to hold them to account through their journalism. As Blander said in a statement to the Weekly News: “In pursuit of our mission to foster democratic participation by informing our readers about important issues, including those that impact students and their families, the Current seeks to make responsible use of the public records laws.”
What’s more, there is no evidence that the Current has abused the public records law by filing an inordinate number of requests. According to the editorial, “Since our launch in June 2022, we have filed 15 public records requests, 14 of which have been directed to the School Department.” Eleven of those were related to the departure of the previous superintendent. To be fair, school officials determined that a recent request for records about complaints against teachers would have required poring over nearly 477,000 emails, and that the Current would be assessed $50,000. But as the editorial put it: “As should have been obvious, the Current was not seeking to commission such a voluminous and intrusive search. We agree that would not be the best use of school employees’ time (or our money). Moving forward, if we inadvertently submit overly broad records requests to record keepers, we hope our partners in public service would simply call us and ask, ‘What are you really looking for? Can we find a way to respond without overburdening our staff?'” The editorial concluded:
Our school officials have to realize, though, that if what they are asking is essentially “stop asking so many questions,” we view that prescription as a non-starter. While we will take better care to make our requests more targeted and less burdensome, we will continue to use the public records law to seek answers we believe the public deserves.
The public records law exists so that members of the public — and the press, acting as representatives of the public — can hold government accountable. This particular Muzzle Award goes not to any particular individual but, rather, to union officials and the school committee as a whole for promoting an atmosphere suggesting that they know best, and that the prying eyes of the press are not welcome.
***
In Waltham, meanwhile, City Solicitor John Cervone has earned a Muzzle for issuing a ruling calling it “potentially problematic” if elected members of the city council who were participating in candidates forums addressed issues that were currently under consideration. This is an absurd restriction, since a challenger would be free to discuss such issues freely while the incumbent would be forced to sit there and say nothing except “upon the advice of counsel blah blah blah.” As a Boston Globe editorial put it:
The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.
Justin Silverman, a lawyer who’s the executive director of the New England First Amendment Association, was quoted as saying that Cervone’s opinion appeared to be based on a misunderstanding of the state’s open meeting law. “If there isn’t a quorum present at public events, then it’s not a violation under the open meeting law,” Silverman said. No doubt — and yet it’s more than theoretically possible that a quorum of council members could be present at a candidates forum if they were all running for re-election.
A mayoral candidate, City Councilor Jonathan Paz, said Cervone’s opinion created a “chilling effect,” adding, “We as candidates are supposed to be candid, we’re supposed to be transparent about our values and our positions on certain matters.” And wouldn’t you know it: Paz lost his challenge to incumbent Mayor Jeannette McCarthy by a wide margin. No doubt it’s a stretch to say that the gag order hurt Paz’s campaign — but surely it didn’t help.
The Globe editorial notes that a similar issue arose in Newton four years ago. It’s time to clarify the law so that muncipal lawyers in other communities don’t travel down a similar censorious path.
And now Gideon Cody, the police chief in Marion, Kansas, who was suspended after ordering a raid on the local newspaper and two private homes, has resigned. The Associated Press reports.
Gideon Cody, the police chief who ordered the raid on the offices of the Marion County Record in Kansas as well as two private homes, has at long last been suspended. The raid — which may have led to the death of the paper’s 98-year-old retired publisher, Joan Meyer — was supposedly related to the Record’s having received confidential records about a local restaurateur. But it came at a time when the paper was investigating allegations of sexually charged and abusive behavior by Cody in his previous job. The Record’s Phyllis Zorn has the details.
A federal grand jury has indicted four men from New Hampshire in connection with what authorities allege was “a conspiracy to harass and intimidate two journalists employed by New Hampshire Public Radio (NHPR).” The case involves vandalism against the homes of NHPR reporter Lauren Chooljian, her parents, and her editor, Dan Barrick. The story has attracted national attention, including a rather harrowing account last June in The New York Times (free link).
There’s an interesting angle to the latest news. In June, the U.S. Attorney’s Office in Boston announced that three men had been charged: Tucker Cockerline, 32, of Salem, Eric Labarge, 46, of Nashua; and Michael Waselchuck, 35, of Seabrook. Now a fourth suspect has been added to the list: Keenan Saniatan, 36, of Nashua. Each could face up to five years in prison and a $250,000 fine.
All of this is related to reporting by NHPR that Eric Spofford, the politically connected founder New Hampshire’s largest network of addiction treatment centers, had engaged in sexual harassment. The suspects are allegedly associates of Spofford, who has not been charged. In fact, Spofford is claiming libel in a lawsuit against Chooljian and NHPR. The state judge in the case, Daniel St. Hilaire, raised First Amendment concerns by ordering NHPR to turn over documents so that he could determine whether they supported Spofford’s libel claim. The libel suit, however, is now on hold, according to Nancy West of the investigative website InDepthNH, because St. Hilaire has gone on leave for an unspecified reason.
The vandalism that was allegedly committed by the four suspects was frightening and vile; if you want to read the gory details, it’s all in the press release.
Update: West of InDepthNH tells me that Judge St. Hilaire has been back from leave for a while and that she’ll soon be writing about the latest developments in Spofford’s libel case.
The Washington Post has published an excellent all-known-facts piece on the police raid against the Marion County Record. Reporters Jonathan O’Connell, Paul Farhi and Sofia Andrade pull together all the various threads of this saga — the Record’s investigation into Police Chief Gideon Cody’s past, the question of whether the paper may have broken the law in accessing a local restaurateur’s driving history, and the Record’s reputation for hard-hitting journalism in a community where that’s not always popular. Here’s a free link.
What is the role of a community newspaper? Is it to be loved? Or is it to hold the local power structure to account?
Maybe it’s a little bit of both, according to Eric Meyer, publisher and editor of the Marion County Record, the Kansas weekly that was recently subjected to a police raid on its office, on the home Meyer shared with his mother, retired Record publisher Joan Meyer, and the city’s vice mayor. Joan Meyer, 98, died the day after the raid, possibly due to stress stemming from the assault on her home.
Authorities, who apparently broke federal law in conducting the raid without first obtaining a subpoena, were supposedly seeking documents that it claimed the Record had illegally downloaded from a state website. The Record says it was on solid legal ground, and a state prosecutor ordered that the documents be returned to the paper. But the Record was also reporting on allegations of sexual harassment by Police Chief Gideon Cody in his previous job at the Kansas City Police Department, which may have been the real motivation the raid.
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Meyer, Record reporter Deb Gruver and Gabe Rottman, a lawyer with the Reporters Committee for Freedom of the Press, which put together a letter signed by news organizations and press-freedom organizations, spoke last week at a virtual event organized by the New England chapter of the Society of Professional Journalists, moderated by SPJ national president Claire Regan. You can watch the entire conversation above, but here are some edited and condensed highlights.
Eric Meyer
On a home security video that shows Joan Meyer yelling at the officers who’d invaded her home, getting up in their faces and calling two of them “assholes”: “If you watch the video clip, you would say that’s a formidable woman. And she was also a very kind and gentle person who loved to help people and everything else. But she saw an injustice and she was angry about it.”
On Cody’s motives in ordering the raid: “The chief motivation is that Deb Gruver had information about him from his former co-workers that indicated he probably was somebody you wouldn’t want to have hired. To our discredit, we did not run the story [until after the raid]. We never could get anyone named on the record. This is a guy who went from Kansas City, Missouri, earning $110,000 a year, supervising dozens of people, to Marion, Kansas, supervising two people and earning $60,000 a year. You don’t usually take a $50,000-a-year pay cut, and a huge reduction in supervision, one year before you could have retired from the Kansas City Police Department. So there’s a lot of suspicion here.”
On reports such as this one in The New York Times that some people in Marion thought the Record was overly negative in its coverage: “If negative things happen, you’re going to have a lot of negative news in the paper. It is a little difficult because you have to live in the community. And I’ve been accused of trying to kill the town — that I came back here to kill the town. Well, what newspaper owner would ever want to kill the town that their newspaper is in? It just doesn’t make any sense.”
Deb Gruver
On having her cellphone physically taken from her and being forced to stand outside in the heat while officers searched the Record’s office: “I poked my head in and said, ‘Hey, it’s hot out here.’ And we’re sweating. And I’m not feeling very well. And he [one of the officers] said, ‘Yeah, you don’t look very good.’ So I said, ‘In the bottom drawer, there should be some bubbly water or whatever. Can you find it? I’d like to get something to drink.’ And it takes 20 minutes for him to get permission from Chief Cody to do that. I’m 56. I have hot flashes. My blood sugar was down because I hadn’t had anything to eat. There was no compassion shown at all. They were just enjoying that little bit of tiny power that they thought they had for a minute. And I despise him [Cody] now. I mean, I didn’t like him from the get-go. But I’m afraid of him. I’ll be honest, I’m afraid of him. I think that he is capable of doing something far worse to me. And I don’t feel great about being anywhere where he’s going to be.”
Gabe Rottman
On how unusual the raid on the Record was: “It’s kind of an odd case where the underlying facts are slightly immaterial, in the sense that these raids are so exceptionally rare that we don’t even track them. I can think of maybe four or five incidents that are possibly similar. Unless it was a journalist at the newspaper who was involved in criminal activity, unrelated to news, this just doesn’t happen. There’s a federal law in place, the Privacy Protection Act, which limits searches. There is no subpoena-first rule when you’re talking about reporting. You can only get it if you’ve got probable cause that the target committed a crime, and the crime can’t be related to news-gathering, with exceptions for national security leaks and a couple of others, neither of which are applicable here.”
Eric Meyer
On what’s next for the Record: “We’re going to publish the newspaper, and we’re going to still report the news. We might even report a little more aggressively because of this. I like to tell our staff, ‘We’re not competing with Facebook, we’re not even competing with another publication. We’re competing with Netflix. We’ve got to have something that is worth somebody’s time to read.’ And we’ve tried to do that. Our average website visit lasts about 10 and a half minutes, which, if you talk to most of the people who record such things, is a pretty phenomenal number. It’s better than The New York Times gets. And we try to give you something good solid that you can sit down with and enjoy reading.”
The Marion County Record has dropped the bomb on Police Chief Gideon Cody, whose officers recently raided the newspaper’s office and two private homes. The Record’s Deb Gruver writes that the paper had held off from publication because it couldn’t get anyone to go on the record — but that decision was reversed after other news organizations began to report similar stories, also based on anonymous sources.
Cody left the Kansas City Police Department, where he was a captain, after he was demoted for harassing and demeaning his subordinates. Perhaps the most explosive section in Gruber’s story involves Cody’s unhappiness at having been transferred while he was under investigation:
Multiple sources recalled a conversation in which Cody was talking about his career and mentioned how much he loathed working in communications, or dispatch.
Cody said that if they hadn’t transferred him when they did, he would have found “the skinniest and prettiest girl down there and f*cked her” to force a move.
“I was quite flabbergasted and didn’t know how to respond to that,” a source said. “All respect that was there was lost.”
One source later transferred to another unit.
“As soon as I left his command, I was happy. It felt like a great weight had been lifted off of me,” he said.
Gruver added that one source called Cody “the absolute worst commander I ever experienced” and quoted him as saying: “His ego would not allow him to listen to what anyone below his rank said … a common characteristic of toxic/ego-centric commanders.”
The Record has also posted about a minute and a half of security video (above) showing the officers in the midst of illegally (that is, without the required subpoena) searching the home of Joan and Eric Meyer, the publishers of the Record. Joan Meyer, who was Eric’s 98-year-old mother, died the next day. She comes across as pretty feisty in the video, but she was no match for Cody’s heavily armed men.
At no point have I believed the cover story for the raid — that police were searching for evidence that the Record had illegally obtained documents about a local restaurateur’s history of drunken driving. It has seemed clear from the beginning that Cody was looking to intimidate the Meyers to stop their reporters from probing into his sleazy past in Kansas City. And now it’s all starting to come out.
We’re starting to learn more about why police in Marion, Kansas, raided a newspaper office and two private homes, possibly leading to the death of the newspaper’s 98-year-old co-publisher, Joan Meyer. It’s pretty thin gruel, and it certainly doesn’t justify the police department’s violation of federal law in not seeking a subpoena before making off with the Marion County Record’s computers, cellphones and other materials.
According to Jonathan O’Connell and Jon Swaine of The Washington Post (free link), Phyllis Zorn, a reporter for the Record, may have broken privacy laws by downloading documents pertaining to a local restaurateur’s history of drunken driving and driving without a license. She obtained those records from a state database, possibly by claiming to be the restaurant owner or by lying about her reasons for seeking the documents. (Jim Salter of The Associated Press has a similar story.)
This story has been convoluted from the start, and I’m not going to try to parse all of it here. You can read the Post’s article if you’re interested in the details, but here is some pertinent information: Zorn already had a copy of the documents, given to her by an enemy of the restaurant owner, Kari Newell, and was using the state database to confirm their authenticity. The Record’s publisher, Eric Meyer, reportedly told Newell the paper would not use the records for a story because of the way Zorn had obtained them — although some of the details were published anyway because they came out at a city council meeting. Meyer and Zorn have both denied that the Record broke any laws.
The local prosecutor has ordered that the materials seized by police be returned to the Record.
State authorities are said to be investigating the newspaper’s actions but not those of the police department. Eric Meyer has filed a federal lawsuit. That’s fine, but the U.S. Justice Department needs to undertake its own investigation.
In other developments:
• Danielle Kaye of NPR reports that the Record has compiled an admirable record over the years for its tough watchdog journalism. “Founded in 1869,” she writes, “the paper is known for its hard-hitting coverage of local government decisions and holding people in positions of power accountable.”
• In The New York Times, Kevin Draper writes (free link) that the Record’s scrappy brand of local journalism is controversial among some local residents — especially since Eric Meyer came home several years ago from the Milwaukee Journal Sentinel, where he had been a reporter and editor, to take charge of the family business. Draper asks: “What is the appropriate relationship between a community and a local news organization, and what duty, if any, does it have to be a booster for the places it covers?”
• Magistrate Judge Laura Viar, who signed the search warrant used to in the raid, has her own history of drunken driving, reports Chance Swaim of The Wichita Eagle. Viar “was arrested at least twice for DUI in two different Kansas counties in 2012, a Wichita Eagle investigation found.”
• The Kansas City Star has confirmed earlier reporting by Marisa Kabas of The Handbasket that Marion Police Chief Gideon Cody left his previous job at the Kansas City Police Department after being accused of sexual misconduct. The Star’s paywall appears to be impenetrable, but Kabas writes that the Star found Cody was demoted after he allegedly disparaged a female officer and made sexist comments. Rather than accept the demotion, Cody took the job in Marion. Eric Meyer says the Record was reporting on Cody’s past at the time of the raid.
Earlier:
- The New York Times pays tribute to Kansas newspaperwoman Joan Meyer (Aug. 16)
- Kansas police chief claims secret information to justify newspaper raid (Aug. 14)
- Kansas newspaper publisher’s 98-year-old mother dies after police raid her home (Aug. 13)
- Nobel winner weighs in on a shocking police raid against a newspaper: “It’s happening to you now” (Aug. 12)