Regrets, Walsh has a few

Then-Boston Mayor Marty Walsh. Photo (cc) 2014 by Joe Spurr.

Good to know that Secretary of Labor Marty Walsh regrets having dumped the Dennis White mess into Acting Mayor Kim Janey’s lap. But he still hasn’t explained why he refused to release former police officer and accused child molester Patrick Rose’s personnel records despite having been ordered to do so by the secretary of state’s office.

Marilyn Schairer of GBH News reports that Walsh, who preceded Janey as mayor, addressed the White matter during a swing through Boston, saying:

I made it very clear I wanted to resolve that situation before I left. And unfortunately, wasn’t able to. But, you know, Kim took action. I watched what she did. And now there’s a search for a commissioner. And that’s the right way to go.

Walsh left behind a disaster within the Boston Police Department. White was the police commissioner for a few days before claims of domestic abuse were surfaced, leading Walsh to suspend him. Janey ended up firing him. Rose, a former president of the Boston Police Patrolmen’s Association, has been charged with multiple counts of child sexual abuse, a spree that was enabled by an apparent failure to act on an internal investigation in the mid-’90s that found one of his alleged victims was most likely telling the truth.

Both White and Rose have denied any wrongdoing.

Walsh’s stonewalling in the Rose matter earned him a New England Muzzle Award from GBH News last month.

Garland makes good on Biden’s promise to stop harassing the press

Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.

Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.

When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.

But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:

The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.

Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.

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Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.

There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.

Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.

Muzzle follow-up: New Hampshire adopts ban on ‘divisive’ antiracism education

I posted this at the bottom of my GBH News column for today, but I want to publish it here as well.

The GBH News 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted at the time, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.

Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”

This is a blow against local autonomy, coming from the “Live Free or Die” state.

In a related development, Boston Globe columnist Yvonne Abraham starts to connect the dots with Parents United, a group of wealthy white parents who are so, so concerned about antiracism education. Follow the money, as they say, and Abraham documents ties to the Club for Growth and the Federalist, two formerly conservative organizations that have moved to the Trumpist right in recent years.

The Supreme Court may be poised to weaken libel protections for the press

Photo (cc) 2005 by zacklur

If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.

Read the rest at GBH News.

Looking back at 24 years of New England Muzzle Awards

In the spring of 1998, civil-liberties lawyer and First Amendment advocate Harvey Silverglate had an idea: Why not single out enemies of free speech in the pages of The Boston Phoenix? Harvey was a Phoenix contributor; I was the media columnist. We refined Harvey’s idea and, at his suggestion, named them the Muzzle Awards — borrowing the name from the Thomas Jefferson Center for the Protection of Free Expression (now defunct) and restricting them to the Boston, Worcester, Portland and Providence areas, where we had papers.

We decided on the Fourth of July for two reasons — first, to emphasize that the Muzzles were an expression of patriotism; second, so that the rest of the news staff could pretty much take the week off. The first annual Muzzle Awards were published on July 3, 1998. Among other winners, we singled out of the FCC for shutting down Radio Free Allston, a pirate station that served the community at a time when it was even harder to get a license for a low-power FM operation than it is today; the town of Plymouth, where police roughed up Native American protesters; and Walmart, for refusing to sell CDs that carried a parental warning label.

The Muzzles turned out to be a hit. David Brudnoy and, later, Dan Rea would have me on to talk about them on WBZ Radio (AM 1030) and — I’d like to think — we helped educate our readers about the importance of free expression.

I continued writing the Muzzles after leaving the Phoenix for Northeastern in 2005. At that point, I stopped singling out colleges and universities because I thought it would be a conflict of interest. Harvey began writing the Campus Muzzle Awards as a sidebar.

Then, in the spring of 2013, The Boston Phoenix closed abruptly, and we needed a new home for the Muzzles. Fortunately my friends at GBH News stepped up and have been hosting them ever since. Although The Worcester Phoenix was long gone at that point, the Muzzles continued to appear in the Providence and Portland papers until they, too, shut down. (The Portland Phoenix was revived a couple of years ago under new ownership and appears to be doing well.) And here’s a pretty astonishing fact: Peter Kadzis has been editing the Muzzles from the beginning, first at the Phoenix, now at GBH.

This year’s New England Muzzle Awards, published on July 1, are, like their predecessors, a reflection of the era. The Black Lives Matter protest movement that was revived after the police killings of George Floyd and Breanna Taylor figure in several of the awards — from Boston and Worcester police officers who brutalized peaceful demonstrators, to racial justice protesters in Burlington, Vermont, who stole and destroyed copies of a newspaper whose coverage they were unhappy with, to Sheriff Scott Kane of Hancock County, Maine, who banned a desperately needed drug-counseling service from his jail after the nonprofit posted a statement on its website in support of Black Lives Matter.

We have some well-known winners, too, including Secretary of Labor Marty Walsh, Fox News talk-show host Tucker Carlson and former President Donald Trump. The town of Plymouth is back as well — this time for threatening punitive fines against a Trump supporter who’d put a sign critical of President Joe Biden on his lawn.

This is the 24th year of Muzzle Awards, so next year will be a landmark. Will they continue after their 25th anniversary? Right now I couldn’t tell you. I have put together an index of all 24 years in case you’re interested in what previous editions looked like. Link rot had claimed some of them, but I was able to overcome that thanks to the Internet Archive.

The animating spirit of the Muzzles was best expressed by Supreme Court Justice Oliver Wendell Holmes Jr. in 1929: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

It’s been a long ride — and I’ve already got a candidate for the 2022 edition.

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The 2021 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Illustration by Meryl Brenner / GBH News

The past year was the most tumultuous in our history since at least 1968, characterized by a deadly pandemic, economic collapse and a presidential election whose aftermath culminated in a violent insurrection at the Capitol, cheered on — and, arguably, incited — by the losing candidate.

But that wasn’t all. Following the police killings of George Floyd and Breonna Taylor, a revived Black Lives Matter movement took to the streets and protested from coast to coast. The response to those protests, and to the movement in general, leads our list of New England Muzzle Awards this year.

Read the rest at GBH News.

Ron DeSantis’ latest stunt would make Joe McCarthy proud

Joseph McCarthy. Painting via the National Portrait Gallery.

Florida Gov. Ron DeSantis, who’s running hard for the 2024 Republican presidential nomination, signed a bill this week that is a masterpiece of performative McCarthyism. Ana Ceballos of the Tampa Bay Times reports that the legislation will require the state’s public colleges and universities to conduct an intrusive survey into the beliefs of students, faculty and staff.

The survey, Ceballos writes, will be used to determine “the extent to which competing ideas and perspectives are presented” and whether “intellectual diversity” is supported on campus. The new law could be the basis for budget cuts “if universities and colleges are found to be ‘indoctrinating’ students,” according to Ceballos.

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Josh Kovensky of Talking Points Memo reports that, at a news conference following the signing, DeSantis castigated many colleges and universities as “intellectually repressive environments. You have orthodoxies that are promoted and other viewpoints are shunned or even suppressed.”

DeSantis’ action, needless to say, is a grotesque violation of the First Amendment. But that’s nothing new for him, as I’ve written previously.

DeSantis has also banned public school curriculum based on The New York Times’ 1619 Project, which he falsely calls “false history,” as well as instruction in critical race theory — an academic concept that, as Kovensky notes, has little to do with the diversity training and teaching about systemic racism that school systems actually engage in.

In a straw poll of potential 2024 candidates held last weekend at the Western Conservative Summit in Denver, DeSantis narrowly beat Donald Trump, according to The Hill. But first he has to win re-election as governor.

Florida had been trending bluish in recent years but appears to be moving back into the Republican column based on the past several elections. Still, a number of Democrats are lining up to challenge DeSantis, including Democratic congressman Charlie Crist, a former Republican governor himself.

The problem with McCarthy-style populism is that it’s popular — until it isn’t. We’ll see how DeSantis’ latest attack on freedom of expression plays with Florida voters.

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.

We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.

Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.

Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:

• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.

• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.

“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”

Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”

In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.

Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.

But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.

President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.

But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.

We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.

No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.

Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.

In general, though, the government should go about its business without compromising the independence or freedom of the press.

Michigan legislator files bill to register fact-checkers

You can’t make this up. The Detroit News reports:

A Michigan lawmaker who’s been at the center of efforts to question the 2020 election introduced a bill Tuesday that would require “fact checkers” to register with the state.

Fact-checkers would be required to post $1 million bond. Needless to say, the bill is unconstitutional.

The legislator in question is Rep. Matt Maddock, a Republican, who also proposed impeaching Gov. Gretchen Whitmer over the COVID-19 restrictions she implemented.