Category Archives: First Amendment

Presenting the 19th annual New England Muzzle Awards

Illustration by Brendan Lynch/WGBH News

Illustration by Brendan Lynch/WGBH News

Previously published at WGBHNews.org.

An elected school committee that voted unanimously to condemn a newspaper reporter for tweeting out news from a public meeting. A sheriff who flashed his badge while asking store owners to remove posters for his political opponent. Officials in three New England cities who cracked down on panhandlers in clear violation of their free-speech rights.

These are just three of the stories that are featured in the 19th annual New England Muzzle Awards, our Fourth of July roundup of outrages against free speech. All that and Donald Trump, too.

First, though, some good news. Last year we called for reform of the notoriously weak Massachusetts public-records law, which had earned an “F” from the State Integrity Project. At long last, the legislature passed a reform bill, which was signed into law by Governor Charlie Baker on June 3.

The most important part of the law is that, finally, people whose public-records requests are wrongly ignored or turned down may receive expense money to cover their legal fees. The law also puts limits on how much money government agencies can charge for records and mandates that those records be made available electronically when feasible.

“This bill represents a significant step forward for transparency in Massachusetts,”said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, in a statement. “It will do a lot to improve access to public records.”

The law is far from perfect. It still applies only to local government and executive agencies, exempting the governor’s office, the court system, and the legislature. It also extends the amount of time government agencies have to respond to public-records requests—perhaps a reasonable step given how widely ignored the old deadlines were, but something that will have to be monitored.

Another Muzzle note: As we were wrapping up this year’s list, Rhode Island Governor Gina Raimondo vetoed a bill outlawing the posting of so-called revenge porn. As Raimondo rightly observed, “The breadth and lack of clarity may have a chilling effect on free speech. We do not have to choose between protecting privacy rights and respecting the principles of free speech.” We’ll be keeping an eye on this to see if it raises its censorious head during the coming year.

The Muzzle Awards, launched in 1998, were published for many years in the late, great Boston Phoenix, which ceased publication in 2013. This is the fourth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.

The envelopes, please …

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Why the case against Gawker threatens free speech

Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.

Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.

Previously published at WGBHNews.org.

Does Hulk Hogan’s invasion-of-privacy suit against the news-and-gossip site Gawker threaten the First Amendment? No. But the way his case is being paid for might.

Last week we learned that Peter Thiel, a Silicon Valley billionaire, had provided about $10 million to help fund Hogan’s case. Such third-party financing is legal, and it proved to be a sound investment: in March, a Florida jury found that Gawker had invaded Hogan’s privacy by publishing a video of him and a friend’s wife without permission and awarded him $140 million.

Now, first things first. If you care to immerse yourself in the details of the case, you will find all kinds of contradictory statements as to whether Hogan (real name: Terry Bollea) and his paramour, Heather Clem (wife of Bubba the Love Sponge Clem; and yes, that’s his real name), knew or didn’t know they were being recorded and did or didn’t expect that the video would somehow become public.

But the law involving invasion of privacy is reasonably clear. It can be traced back to an article that future Supreme Court justice Louis Brandeis and his law partner, Samuel Warren, wrote for the Harvard Law Review in 1890. The principle is explained succinctly in this warning to journalists published by the Reporters Committee for Freedom of the Press:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public.

Hogan’s status as a public figure makes (b) a little iffy, and Gawker tried to argue that Hogan’s boasts about his sexual prowess made the sex tape newsworthy. That strikes me as the sort of issue that a jury could legitimately decide either way. As First Amendment expert Erwin Chemerinsky told the New York Times when the verdict was handed down, “I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent. I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”

There matters stood until May 24, when Ryan Mac of Forbes revealed that Thiel, a PayPal cofounder and “an eccentric figure in Silicon Valley who has advocated for teenagers to skip college and openly supported Republican presidential candidate Donald Trump,” was the money behind the Hogan suit. Thiel, Mac wrote, had been harboring a grudge against Gawker Media and its publisher, Nick Denton, since 2007, when Denton’s Valleywag site outed Thiel as gay.

The next day Thiel came clean in an interview with Andrew Ross Sorkin of the New York Times, saying, “I refuse to believe that journalism means massive privacy violations. I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

As I’ve argued, Hogan’s case against Gawker was well within the bounds of existing privacy law. Moreover, it’s perfectly legal to finance someone else’s lawsuit. Yet numerous free-speech advocates have expressed horror at the Thiel revelation.

Washington Post media columnist Margaret Sullivan compared Thiel’s actions to the Edward Snowden affair and to Senator John Thune’s thuggish (my word, not hers) demand that Facebook account for perceived liberal bias in its Trending Topics feature.

Technology pundit Mathew Ingram of Fortune added that the Hogan case has now “become more about an attempt to bankrupt a publication that a billionaire investor dislikes for personal reasons. And that has disturbing implications for freedom of the press.”

Nick Denton himself, in an open letter to Thiel oozing with self-justifying obnoxiousness, wrote, “The best regulation for speech, in a free society, is more speech. We each claim to respect independent journalism, and liberty. We each have criticisms of the other’s methods and objectives. Now you have revealed yourself, let us have an open and public debate.”

Ingram and other defenders of Gawker point to some troubling aspects of Thiel’s involvement that do, in fact, have some important First Amendment implications. For instance: Hogan’s lawyer apparently insisted on a provision that Gawker Media’s insurance company not be allowed to pay the award, which strongly suggests that the motive behind the suit was to put Denton out of business rather than receive just compensation for the site’s transgressions.

In addition, Ingram notes, Thiel has said he’s backing several other lawsuits against Gawker. Although he hasn’t identified those suits, that may include one brought by V.A. Shiva Ayyadurai, who’s going after Gawker for calling his claim to have invented email fraudulent. Really?

The $140 million awarded to Hulk Hogan seems absurdly high, and the case is under appeal. Meanwhile, numerous reports suggest that Gawker Media is in serious financial trouble as a result of the case.

So we are faced with the prospect that a billionaire may secretly use his money to drive a news organization out of business. Gawker Media may be a singularly unsympathetic defendant, but that strikes me as the sort of money-fueled power imbalance that the First Amendment ought to expose, not enable. Is there anything we can do about it?

As Timothy B. Lee points out at Vox, “the law used to bar unrelated third parties from paying someone else to engage in litigation and financing a lawsuit in exchange for a share of the damages.” Unfortunately, it’s not likely in the current political climate that such a ban would be reimposed.

At the very least, though, efforts such as Thiel’s should not be secret. Denton’s lawyer should have been allowed to present information about how the lawsuit against Gawker was being financed, and to have an opportunity to question Thiel in front of the jury about his activities and motives.

What Warren and Brandeis wrote 126 years ago seems, if anything, even more applicable today:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.

But Brandeis may yet come to Denton’s rescue. Whether Denton knew it or not, it was Brandeis he was channeling in his call for more speech. As Brandeis wrote in the 1927 case of Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

So let Hulk Hogan sue. Let Peter Thiel finance that suit. But let it play out in the light of day so that all of us, including jurors, can weigh and assess everyone’s motives—not just Hogan’s, or Mrs. The Love Sponge’s, or Nick Denton’s, but Thiel’s as well. It’s not a perfect solution, but surely openness would help alleviate any free-speech concerns raised by Thiel’s surreptitious activities.

Open government in Mass. moves to closer to reality

The following is a press release from the ACLU of Massachusetts.

BOSTON—In a pair of unanimous, bipartisan votes, the state House of Representatives and Senate today passed the first major reform of Massachusetts public records law in four decades, sending it to Governor Charlie Baker, who has 10 days to sign, veto, or let it become law without his signature. If signed into law by Governor Baker, the legislation would address widely criticized weaknesses in Massachusetts public records law, which make it hard for citizens to get information about how their government functions.

“This is a great day for open government,” said Carol Rose, executive director of the ACLU of Massachusetts. “We thank the House and the Senate for making public records reform a priority and for getting the job done. We also call on Governor Baker to do the right thing and sign the bill as soon as it reaches his desk.”

The bill would:

  • Set clear limits on how much money government agencies can charge for public records;
  • Set reasonable time frames for responses to public records requests;
  • Allow municipalities to request additional time for compliance and the ability to charge higher fees to cover reasonable costs;
  • Strengthen enforcement of the law by giving courts the ability to award attorney fees to those wrongly denied access to public records.

The Massachusetts Freedom of Information Alliance—a coalition of open-government groups—praised the House and its leadership for making transparency a significant legislative priority. The coalition urged Governor Charlie Baker to sign the legislation without delay and usher in a new era of openness in Massachusetts state government.

“A strong public records law is critical to democracy and our ability as citizens to hold government accountable,” said Pam Wilmot, executive director of Common Cause Massachusetts. “With today’s vote, the House and the Senate made a significant commitment to transparency and freedom of information, improving open government, and moving our state a huge step forward from near last in the nation. This reform is long overdue and we hope the Governor will sign it without delay.”

In November, the Center for Public Integrity released a report that gave the Commonwealth an “F” grade on public access to government information for the second time in a row. Dozens of organizations have advocated for comprehensive public records law reform, arguing that the law is among the weakest in the country and needs updating for the digital age. State lawmakers made their last substantive amendment to the law in 1973.

“This bill represents a significant step forward for transparency in Massachusetts,” said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It will do a lot to improve access to public records. We hope and expect Governor Baker will prove himself to be a transparency-minded Governor by signing it into law.”

“Massachusetts residents deserve a stronger public records law, and this bill offers many improvements. We look forward to the governor signing it into law and providing more opportunity to hold government officials accountable,” said Justin Silverman, executive director of the New England First Amendment Coalition.

The pending legislation advanced earlier in the week when a conference committee of six legislators reconciled earlier versions passed by the House and Senate. The bill passed by the House and Senate today includes provisions designed to reduce the cost of obtaining public records and ensure timely responses to information requests. In addition, by allowing courts to award attorney fees to those wrongly denied access to public information, the bill would bring Massachusetts into line with 47 other states. The new law would not make such fee awards mandatory, but would establish a presumption in favor of covering requesters’ legal costs when courts find the law has been violated. The bill also includes safety-valve mechanisms to enable municipalities to get extensions on compliance deadlines and to receive reasonable compensation when dealing with particularly complex, time-consuming requests.

The full bill, An Act to improve public records (now H.4333), can be found here: https://malegislature.gov/Document/Bill/189/House/H4333.pdf.

Why NH’s ban on ballot selfies threatens free expression

Illustration by Brendan Lynch for WGBHNews.org.

Illustration by Brendan Lynch for WGBHNews.org.

Previously published at 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.

Last summer I bestowed a WGBH News Muzzle Award upon State Representative Timothy Horrigan, a Durham Democrat, for foisting this new form of digital harassment upon the public. I can’t stay I took it all that seriously. Mainly I thought it would make for a fun item to wedge in between more serious examples of censorship. And I certainly wasn’t surprised when, a month later, the law wasstruck down by a federal judge on First Amendment grounds.

But the selfie ban won’t die. New Hampshire Secretary of State William Gardner is now appealing it, and the matter is before the U.S. First Circuit Court of Appeals—which means that if he wins, a similar ban in Massachusetts would continue to stand as well. So it’s time to take a closer look at why a law against taking pictures of ourselves and our ballots is a violation of our constitutional rights.

The New England First Amendment Coalition has filed an amicus curiae (“friend of the court”) brief laying out the case against the selfie ban. Filed in conjunction with the Keene Sentinel and prepared by the Cyberlaw Clinic at Harvard Law School, it is a humdinger. Over the course of 34 pages, the brief ranges from a John Oliver comedy routine to show that concerns about voter fraud (the alleged reason for the ban) are vastly overblown to the social impact of images depicting civil-rights demonstrators being attacked in Selma, Ala.

The heart of the brief, though, is a forceful argument that ballot selfies are a form of political speech and therefore deserve the highest level of constitutional protection. “Political speech is a ‘core’ concern of the First Amendment,” the amici write, “and protection of speech is never stronger than when the speaker is addressing political or governmental issues.”

So what could go wrong? In fact, it is not difficult to imagine how ballot selfies might be abused. If someone wants to buy your vote, it stands to reason that he’s going to want proof of purchase. “We have prosecutions for vote buying every year, and many of them involve absentee ballots, where it is possible to see how someone voted and collect and mail their ballot,” writes University of California Irvine law professor Richard L. Hasen in defending the ban.

Yet there is to date no evidence that ballot selfies have been used to enable such schemes—and, according to opponents of the ban, theoretical threats simply can’t be used to defend a law that has the effect of squelching political expression. In a paper published by the Science and Technology Law Review at Southern Methodist University, Nashville lawyer Daniel A. Horwitz says that Hasen is wrong—that vote buying is “statistically non-existent.” Moreover, Horwitz writes, the law would be ineffective in any case because the ballot could be altered after the photo is taken, “rendering the entire premise behind such laws baseless.”

Yes, ballot selfies can be annoying. So can watching the person at the next table take an Instagram of her shrimp scampi. That doesn’t mean either activity should be illegal.

In defending the selfie ban, New Hampshire’s Gardner last year told NPR that breaching the privacy of the ballot booth was a serious threat to democracy. “I have a copy of the last ballot that was used when Saddam Hussein was elected, and that ballot identified who the person was,” he was quoted as saying. “Hitler did the same thing in Austria.”

That’s exactly the sort of wild overstatement that ought to make us suspicious. In fact, the ban prevents us from exercising our free-speech rights today in the name of preventing theoretical evils that can be dealt with when—and if—they arise.

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.