Biden’s ‘demand’ that Giuliani be silenced is an affront to the First Amendment

Joe Biden could be the next president. And he has issued a “demand” (via his campaign) that the networks stop booking Rudy Giuliani, which they have a First Amendment right to do.

Yes, Giuliani is lying about the Bidens. But Biden, who may soon have the power to appoint FCC commissioners, could have “urged” or “requested” that the networks stop giving Giuliani a platform. “Demand” suggests consequences. Does Biden want to join Trump in eroding constitutional norms?

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Why Justice Stevens’ fraught relationship with the First Amendment still reverberates

Justice Stevens

Previously published at WGBHNews.org.

The late Supreme Court Justice John Paul Stevens today is being hailed as a liberal beacon who took strong stands against the death penalty and in favor of gun control and limits on political spending.

But despite his well-deserved reputation as a judge who was motivated by decency and principle, his legacy with regard to the First Amendment is mixed.

For one thing, as Linda Greenhouse observed in The New York Times, Stevens in 1989 broke with his colleagues when they overturned a Texas law that banned flag-burning. “His patriotism was of the old-fashioned, unabashed variety,” wrote Greenhouse by way of explanation.

For another, on two important cases that pitted the right to privacy against freedom of the press, Stevens sided against the media. In one instance he was on the losing end. In the other, though, he wrote the majority opinion, limiting public access to government information in a decision that reverberates three decades later.

First, Stevens’ dissent. Starting with New York Times v. Sullivan in 1964, the Supreme Court began issuing a series of decisions that made it more difficult for plaintiffs to win libel suits. In the Times case, the court ruled that public officials suing for libel would have to show not only that false, defamatory material had been published about them, but that the publisher had acted with “actual malice” — that is, with the knowledge that it was false or with reckless disregard for the truth. That standard was later extended to public figures as well. Then, in Gertz v. Robert Welch Inc. (1974), the court ruled that even private figures would at least have to prove negligence in addition to falsehood and defamation.

These decisions greatly strengthened freedom of the press. Still to be settled, though, was the matter of proof. Traditionally, after a plaintiff sued for libel, it was up to the publisher to prove that the material in question was true. That changed with Philadelphia Newspapers Inc. v. Hepps (1986), in which the court ruled by a five-to-four margin that it should be up to the plaintiff to prove falsity.

Stevens was outraged. In his dissent, he wrote that “in order to comprehend the full ramifications of today’s decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story, and that it was published for no other purpose than to destroy the reputation of the plaintiff.” He added: “I simply do not understand … why a character assassin should be given an absolute license to defame by means of statements that can be neither verified nor disproved.”

Three years later, though, Stevens was on the winning side in ruling that public records may become private in some circumstances, and that the privacy rights of an individual can sometimes outweigh the public’s right to know.

The case, Department of Justice v. Reporters Committee for Freedom of the Press, was decided unanimously in 1989, but it had been many years in the making. Starting in 1978, Robert Schakne, a reporter for CBS News, had been seeking FBI rap sheets about the four Medico brothers, who were alleged organized crime figures with ties to a corrupt congressman named Daniel Flood. Schakne’s case, fought on his behalf by the Reporters Committee, was thrown out in 1985 at the district court level. But a federal appeals court ruled in his favor in 1987. By the time the matter reached the Supreme Court, only one of the Medico brothers was still living. That set the stage for Justice Stevens.

The rap sheets Schakne sought consisted entirely of public records that could be searched for at courthouses and other venues. Yet Stevens wrote that they had ceased to be public because they had been compiled and computerized by the FBI. Thus, the records were covered by the privacy exemption to the federal Freedom of Information Act, or FOIA.

As Stevens put it, there is a “distinction … between scattered disclosure of the bits of information contained in a rap-sheet and revelation of the rap-sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal history files demonstrates that the individual items of information in the summaries would not otherwise be ‘freely available’ either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were ‘freely available,’ there would be no reason to invoke the FOIA to obtain access to the information they contain.”

But that was only part of the test. Under FOIA, records deemed private may still be released if there is a compelling public interest in doing so. The Reporters Committee argued that disclosure of the rap sheets was warranted because the Medico brothers had dealings with Flood. Again, Stevens ruled against the committee, writing that the documents would have provided information about the Medicos rather than the government.

Stevens wrote that “although there is undoubtedly some public interest in anyone’s criminal history, especially if the history is in some way related to the subject’s dealing with a public official or agency, the FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”

The decision was a blow against freedom of the press. Even though rap sheets by their nature are filled with falsehoods and rumors, it seemed (and still seems) absurd that government documents that could have provided information about the Medicos’ dealings with a congressman who had pled guilty to corruption charges were not made public. As Jane Kirtley, then the director of the Reporters Committee, put it at the time, the decision had “very serious implications for public access to government information. It says that today something may be a public document but tomorrow it’s not because it’s on a computer tape.”

And yet there was something admirable about Stevens’ insistence that the privacy rights of individuals should take precedence over the interests of the news media. As a journalist and as a First Amendment advocate, I wish Stevens and his fellow justices had ruled otherwise. But today we are at the mercy of a government that has been spying on us for years and of technology giants who store all kinds of personal data about us for purposes benign and otherwise. I think it says something positive about Stevens’ character that he stood up for privacy in the early days of computerized databases.

It says something, too, for the court we had and lost. Justice Stevens was a giant, and he will be missed.

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The 2019 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Previously published at WGBHNews.org.

With freedom of speech under unprecedented assault, it is heartening that young people get what’s at stake. Two of our 2019 New England Muzzle Awards single out high school principals who tried to silence their students — and wound up being taken to school about the true meaning of the First Amendment.

In Burlington, Vermont, students were forced to remove from their school newspaper’s website an unflattering story about one of their guidance counselors. They fought back, won, and received an award from the New England First Amendment Coalition, which recognized their efforts on behalf of a free press.

In Epping, New Hampshire, a freshman decided to take part in her school’s “America Day” celebration by wearing a red, white, and blue T-shirt that said “Trump: Make America Great Again.” Her principal ordered her to cover it up, which led to a public outcry, an apology, and an acknowledgment that she had a right to express herself as she chose.

The Muzzles are published around the Fourth of July every year to call attention to outrages against freedom of speech and of the press. This year’s round-up covers a wide range of offenders — from the police chief in Bridgeport, Connecticut, whose officers arrested a reporter covering a Black Lives Matter demonstration, to Massachusetts Gov. Charlie Baker, whose administration slapped a gag order on (get this) the state ornithologist. Other recipients include former Maine Gov. Paul LePage, the Massachusetts State Police, and the Rhode Island Division of Taxation, for playing literary critic in its enforcement of a tax exemption.

Our awards come at a time of great peril for the First Amendment. At the behest of President Trump, the U.S. government has charged WikiLeaks founder Julian Assange under the World War I-era Espionage Act for publishing secret documents stolen by former Army private Chelsea Manning. Assange may be an unsavory character, and he certainly was not a traditional journalist even in the years before WikiLeaks intervened in the 2016 election on behalf of Russian interests. But, as Margaret Sullivan argues in The Washington Post, it is virtually impossible to draw a constitutional distinction between what he did in the Manning case and what The New York Times and The Washington Post do when they work with sources such as Daniel Ellsberg and Edward Snowden. Going after Assange could set a dangerous precedent.

Moreover, just a few months ago, U.S. Supreme Court Justice Clarence Thomas wrote that his fellow justices should revisit Times v. Sullivan, a landmark 1964 libel case that protects news organizations from lawsuits by public officials (and, later, public figures) who would would like nothing better than to sue them into oblivion because of inadvertent errors. Times v. Sullivan freed the press to pursue stories like the Pentagon Papers and Watergate, and it remains an essential safeguard for investigative journalism.

The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the seventh 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.

Armando Perez
Bridgeport police chief’s officers detain reporter for doing her job

When protesters took to the streets of Bridgeport, Connecticut, one evening in early May, their goal was to call attention to the death of Jayson Negron, an unarmed 15-year-old who had been fatally shot by a police officer in a Walgreens parking lot two years earlier.

Among those on hand for the protest was Tara O’Neill, a reporter with Hearst Connecticut Media. She had come to cover the demonstration. Instead, she found herself recording a video of her own arrest and posting it on Twitter. Even though she was reportedly wearing a press badge, she was handcuffed and detained for about a half-hour before being released. She was not charged; apparently the police realized at some point that journalism is not a crime.

“This is a public sidewalk and I’m the press,” O’Neill later recalled telling the officer who arrested her. “He said, ‘OK,’ and cuffed me.”

The Muzzle for this malicious act goes to Police Chief Armando Perez. The chief leads a department whose officers think nothing of removing a reporter from the scene of a demonstration so they can crack down on protesters free from the eyes of the press.

“Tara O’Neill is a dedicated reporter who is well-known to Bridgeport police and police leadership,” Matt DeRienzo, vice president of news and digital content for Hearst Connecticut Media, was quoted as saying. “There’s no chance this was a case of mistaken identity. They arrested a reporter while she was doing her job.”

O’Neill’s arrest drew condemnation from free-press advocates. “The fact that someone can be arrested in Bridgeport for the lawful exercise of a First Amendment right is chilling,” said Bruno Matarazzo, president of the Connecticut chapter of the Society of Professional Journalists.

In a letter to Chief Perez and Mayor Joseph Ganim, Justin Silverman, executive director of the New England First Amendment Coalition, added, “While responsible law enforcement is crucial to the well-being of our communities, so is journalism. There is simply no excuse for a journalist to be arrested for doing her job.”

Gov. Charlie Baker
The state ornithologist is muzzled, shining new light on an old, censorious policy

One Saturday evening in mid-May, The Boston Globe published a story by its environmental reporter, David Abel, about the fate of barn swallows. Abel reported on a mini-controversy — federal officials wanted to demolish a rickety barn at the Silvio O. Conte National Fish and Wildlife Refuge that was home to the state’s largest colony of the birds.

Abel’s article included this tidbit: “Baker administration officials declined to allow the state ornithologist to comment, following a pattern of refusing to allow many state scientists to speak to the Globe. State officials acknowledged, however, that the swallows are experiencing ‘a long-term decline.’”

Seriously? Gov. Charlie Baker and his administration had muzzled the state ornithologist? It seemed absurd — so much so that Abel wrote a follow-up on Baker’s policy of not letting state scientists speak to reporters on the record. Invariably, he said, requests to interview scientists are answered with talking points from press spokespersons.

“The response I nearly always receive from the administration — as do many of my colleagues — is a self-serving statement with background bullet points,” Abel wrote. “Rarely do the answers address my questions.” Or as Abel was quoted as telling his fellow Globe staffer Felice Freyer in a post she wrote for the blog Covering Health: “This was a story about f***ing birds.”

To be fair to Baker, the policy is not new with his administration, and it extends beyond state-employed scientists — and far beyond Massachusetts. Elected officials like to maintain tight control of information. From their perspective, it’s better to force reporters to deal with media relations staff experienced at the art of not really saying anything than to connect them with unpredictable experts.

“The Public Information Officer is a frequently obstructive mechanism thinly veiled by a helpful sounding title,” wrote Cinnamon Janzer recently in the Columbia Journalism Review. “PIO-approved comments shape the narratives of their news coverage across the country on matters that range from the mundane to the extremely consequential.”

How bad is it? Janzer cited a 2015 study that showed more than 74 percent of science journalists “were routinely required to get approval from PIOs to interview employees some, most, or all of the time.”

As Abel reported, in Massachusetts that approval is rarely granted.

The absurdity exposed by Abel may not have originated with Baker. But it’s vital that reliable information about important issues be communicated to the public rather than having it filtered and fuzzed-up through the state’s various press offices. Until Baker fixes it, he owns it.

Exeter Police Department
Shades of John Peter Zenger: An internet troll is charged with criminal libel

By all accounts, Robert Frese is one of those cranks who are the bane of online discussion boards, spewing venom indiscriminately at those he thinks have done him wrong. He reportedly referred to a life coach as a molester and a drug dealer. More recently, he called an Exeter police officer “corrupt” and a perjurer, and claimed the police chief was a coward who had “covered up for a dirty cop.”

What makes Frese unusual is that he has been charged twice under a New Hampshire law that defines libel under some circumstances as a misdemeanor criminal offense. For this gross overreaction to harsh criticism, the Exeter Police Department in New Hampshire has earned a Muzzle.

If you have given any thought to libel, you probably assumed that the days of charging someone with a crime for publishing defamatory statements about government officials went out nearly 300 years ago with the acquittal of John Peter Zenger. In fact, though, about half the states still have criminal libel laws on their books. And no less a First Amendment advocate than Eugene Volokh believes the New Hampshire statute is constitutional.

Nevertheless, the ACLU of New Hampshire is mounting a challenge in federal court, arguing that such laws “violate the First Amendment, give the public far too little guidance on what may constitute a crime, and give law enforcement far too much discretion in deciding whom to prosecute.”

The state attorney general, Gordon MacDonald, dismissed the case, arguing that Frese actually believes what he wrote, and that the law pertains only to statements that are made with the knowledge that they are false. But the ACLU counters that Frese should be allowed to proceed with his legal challenge on the grounds that he could face the same charge again. “Mr. Frese reasonably fears that his continued criticism of law enforcement and government officials, including officials in the Exeter Police Department, will result in future prosecutions,” according to the ACLU’s lawsuit.

The Frese matter is odd enough that it has been the subject of stories in both The New York Times and The Atlantic. And not just odd. The New Hampshire law, and similar laws elsewhere, amount to seditious libel, making it a crime to criticize the government. The courts should overturn this once and for all, both here and across the country.

Holyoke, Scituate and Wellesley
Attempts to censor political signs run head-long into the First Amendment

What is it about municipalities and political signs? The courts have ruled over and over that messages with political content deserve the highest degree of First Amendment protection. Yet that hasn’t stopped local officials from trying to regulate or ban them. This year, our sign-related Muzzles go to the city of Holyoke and the towns of Scituate and Wellesley. If we have overlooked any other municipalities, our apologies.

According to the ACLU of Massachusetts, the Holyoke City Council last October passed a ban on “temporary” lawn signs during the winter months and prohibited bumper stickers year-round, overriding a veto by Mayor Alex Morse. The ACLU noted that the ordinance theoretically could have banned not just signs favoring one candidate or another but also those saying “Black Lives Matter” or “All Are Welcome Here.” Not surprisingly, with the help of the Boston law firm Prince Lobel, the ordinance was thrown out in federal district court.

Similarly, members of the select board in Scituate agreed to suspend their own sign ordinace after they received a letter from the ACLU informing them that the bylaw violated the First Amendment. The Scituate ordinance restricted political signs to 30 days before an election and mandated that they be removed within three days after.

In Wellesley, a poet named Dan Chiasson ran afoul of town officials after he put up a self-designed “Impeach Trump” banner on his house. According to The Boston Globe, he was told that the banner was too large and too high up, and that he would be fined $300 a day if he didn’t take it down. The Wellesley Townsman reported that Chiasson tweeted out the certified letter he received and asked, “Do you really want to try to enforce this?”

The answer: No, not really. In a statement, the town said that it was “prepared to review its bylaw to ensure that it complies with recent Federal Court decisions on political signs.”

Paul LePage
Former Maine governor hides Trump-related spending until after he leaves office

What would the New England Muzzle Awards be without an appearance by Paul LePage? He won on several occasions when he was governor of Maine. Now he can claim his first post-gubernatorial statuette.

According to the Portland Press Herald, receipts that the newspaper obtained as the result of a public documents request show that the then-governor and his staff stayed in more than 40 rooms at the Trump International Hotel in Washington over the course of two years, spending around $22,000 in tax money. Rooms ranged from $362 to more than $1,000.

Now what, you might ask, does this have to do with the Muzzles? Very simple: LePage refused to comply with Maine’s public records law when he was governor, so the Press Herald was unable to obtain these receipts until after he had left office.

And lest you think this is nothing more than a gotcha story about public officials’ running up the tab while on state business, it turns out that the LePage administration’s high living may be used as evidence in a federal lawsuit filed by the attorneys general of Maryland and Washington, D.C. Their suit claims that President Trump has violated the “emoluments” clause of the Constitution, which prohibits the president from personally benefiting as a result of spending by foreign or domestic government officials. Indeed, U.S. District Judge Peter Messitte specifically cited LePage’s spending as a reason for why he was allowing the lawsuit to proceed. (LePage responded by calling the judge an “imbecile.”)

LePage has hated the news media for years. As governor, LePage said, among other things, that he’d like to blow up the Press Herald and shoot a cartoonist for the Bangor Daily News. Thanks to the Press Herald’s work in documenting LePage’s entanglements with President Trump’s business empire, his attitude about the press is unlikely to improve now that he’s out of office.

Mass. House court officers
Overzealous enforcement of a ban on photos interferes with accurate reporting

Four years ago we awarded a Muzzle to two court officers at the Massachusetts House of Representatives for manhandling two reporters and ordering them to leave a meeting of the Democratic caucus, even though members had not voted to close the doors. In a quote that became an instant classic, one of the officers reportedly said, “Why can’t you be a f***ing gentleman?”

You’d think that would be enough censorious action for a lifetime. But no. Once again, we are bestowing a Muzzle upon the House court officers, this time for flipping out when they caught WGBH News political reporter Mike Deehan taking a picture of the vote tally board. Deehan tweeted his out-of-focus effort and added:

It’s a serious issue. Not only is taking a photo of how members voted an accurate, fast way to take notes, but it could make for an interesting story if any votes were changed before the final tally. Needless to say, photos of legislators in action would also be newsworthy.

“It’s just a fantastically stupid and obstructionist rule,” Deehan said in an email. “The press is effectively banned from taking photos of any kind inside the Massachusetts House or Senate Chambers. … All photos, by the press, public or members themselves, are prohibited according to the House rules. Anyone who has ever seen a lawmaker’s social media knows that rule is never applied to members, only the press and public.”

Equally bad is the arbitrary nature of the way the rules are enforced. Deehan said he had permission from Speaker Robert DeLeo’s office to take pictures of the tally board, but the court officer who approached him seemed either unaware of it or uninterested. And, as was the case in 2015, the court officers occasionally bar reporters from meetings even when the members have not voted to go into executive (closed) session. One recent instance involving the House Ways and Means Committee led to an apology — but by then it was too late, as the meeting had gone uncovered.

The Great and General Court of the Commonwealth of Massachusetts is not known for its transparency. But it’s long past time to drop the ridiculous ban on photos — and to make sure that the court officers do not exceed their authority by blocking the press from doing its job.

Rhode Island Division of Taxation
Officials tax nonfiction while exempting fiction. Or do they?

In 2013 the Rhode Island General Assembly passed a law exempting writers, composers, and artists who sell their own work from the 7 percent sales tax if they live in the state. But the law left a question to be answered: Who was covered? And who wasn’t?

For writers, the answer apparently given by the state’s Division of Taxation was bizarre indeed: those who produce fiction and poetry are exempt. But those who write non-fiction are not covered and must pay the tax. Although it’s unclear exactly who came up with this interpretation, it is based on the idea that non-fiction does not meet the “original and creative” test written into the law.

Among those on the receiving end of this edict was Paul Caranci, a former member of the North Providence Town Council, former FBI undercover agent, and the author of books such as “Scoundrels: Defining Corruption Through Tales of Political Intrigue in Rhode Island.” According to The Providence Journal, Caranci “sits side-by-side at flea markets, craft fairs, farmers markets and book expos with writers exempt from the state sales tax, while his work is not.” As Caranci put it in an interview with NPR, “It’s a strange enforcement of the law.”

Last fall Steven Brown, executive director of the ACLU of Rhode Island, wrote to the Division of Taxation and the State Council on the Arts only to be rebuffed by a response that was a model of bureaucratic vagueness. So the ACLU sued in federal court, arguing that it was impossible and unconstitutional for the government to try to make a distinction between fiction and poetry on the one hand and non-fiction books such as Norman Mailer’s “The Executioner’s Song” and Truman Capote’s “In Cold Blood” on the other.

But wait. The Division of Taxation later issued a statement that said the ACLU had misinterpreted its rule, claiming that “the sale of a book by its author may qualify for a tax exemption whether the book is a work of fiction or non-fiction,” but that “the book must be a one-of-a-kind, limited edition work, and must not be created or executed for industry-oriented, commercial or related production.”

The ACLU’s Brown, though, says that clearly contradicts the testimony gathered in the course of researching the lawsuit — such as that of Caranci, a plaintiff in the suit, who was told by the state that he had to charge sales tax. Another plaintiff, Steven Porter, said he had been granted an exemption for his fiction but was told he had to charge sales tax for his non-fiction books.

In a statement, Brown said, “The state’s post hoc denial that it has treated fiction and non-fiction books differently flies in the face of the evidence presented in our lawsuit and the unwavering testimony of local authors. Their new claim that they instead grant the exemption for only ‘one-of-a-kind, limited edition works’ flies in the face of the evidence concerning the many clearly non-limited-edition fiction books that have qualified for an exemption. The state’s muddled rationales only highlight the importance of our First Amendment claims.”

Brian Ernest
Principal tells a Trump-supporting freshman to cover up her #MAGA T-shirt

Students at Epping High School in New Hampshire were encouraged to don the red, white and blue this past April for what was dubbed “America Day.” Ciretta MacKenzie, a freshman, was excited to take part. But her choice of attire — a T-shirt that said “Trump: Make America Great Again” — did not meet the approval of school authorities.

Ciretta was called to the front office, where the principal, Brian Ernest, told her that the message was divisive and that she would have to cover it up. According to the New Hampshire Union Leader, Ernest sent an email to Ciretta’s mother in which he “explained that we need to separate political views from patriotism. In today’s climate it is important to not mix church or state.”

For better or worse, Donald Trump is the president. And so, as you might expect, all hell broke loose over Ernest’s act of censorship. School Superintendent Valerie McKenney ordered an investigation. Ernest, to his credit, quickly realized his mistake and issued a public apology. “In retrospect, I want to fully acknowledge my error in judgment and sincerely apologize if my actions were misinterpreted and offended anyone,” he said, according to CBS Boston. “That was never my intention.”

Ciretta turned out to be a forgiving soul. At a school board meeting to discuss the incident that was attended by about 150 people, she said she accepted Ernest’s apology, adding, “I do respect my principal. Even though I do not agree with the decision he made, I do still love him and I do still believe in giving people second chances. I’m very proud of our whole entire community, that everyone can come together and not be angry and not be haters.”

Thanks to the mature reaction of school officials, Trump supporters, and a high school freshman, the situation was resolved amicably. But Ciretta MacKenzie never should have been humiliated by her principal for expressing her First Amendment views. School officials need to make sure this doesn’t happen again.

Massachusetts State Police
From destroying and suppressing public records to spying on motorists

In January 2018, the Massachusetts State Police were in the midst of an internal audit into possible overtime abuse. Among the records needed to conduct that audit were traffic citations, which could be used to prove whether state troopers turned in fraudulent documents so they could collect overtime and hide the fact that they were not actually working.

Yet, as Matt Rocheleau reported in The Boston Globe recently, the agency destroyed several years’ worth of traffic records — documents that are now needed as part of a federal investigation so serious that U.S. District Judge Mark Wolf recently asked prosecutors why they were not considering building an organized-crime case under the RICO laws.

State Police spokesman David Procopio told the Globe that the destruction was routine and that the agency at that time had not been informed of any criminal investigation — even though the documents were relevant to the internal audit that was already under way. Procopio’s reasoning did not impress former state inspector general Gregory Sullivan, who was quoted as telling the Globe, “Wow. I’m dumbfounded about hearing this. This is blatant, outrageous, and worse than the underlying crime. It’s 10 times more serious.”

The destruction of records deserves a Muzzle because not only does it hamper an investigation into serious wrongdoing, but it also deprives the press and the public of important information. But it was only one in a series of actions by the State Police against freedom of information and civil liberties during the past year.

Last October, the website MassLive reported that the State Police had defied an order from the secretary of state’s office to release the audio of a 911 call — a public record — related to a quadruple homicide in West Brookfield.

In March, the Cape Cod Times reported that the State Police were secretly recording the license plates of every motor vehicle that travels across the Bourne and Sagamore bridges, a practice whose constitutionality has been called into question in a drug case. The Globe published a follow-up, and earlier this month it was reported that the state’s Supreme Judicial Court will take up the issue.

The First Amendment is grounded in the idea that the public’s business should be conducted in public. All too often, though, the State Police — the commonwealth’s leading law-enforcement agency — acts like it is above the law.

Noel Green
Students teach their principal a lesson in freedom of the press

Four students from The Register, the student newspaper at Burlington High School in Vermont, stepped forward this past February to receive a Special Recognition Award at the annual meeting of the New England First Amendment Coalition. The students had made use of public records in reporting a story about disciplinary charges that had been filed against their guidance counselor.

It was a proud moment. But what had brought them to Boston that day wasn’t their enterprising journalism — it was their courage in standing up to their interim principal, Noel Green, who had ordered that their entirely accurate story be removed from The Register’s website.

The students fought back. In an interview with the Burlington Free Press, they said they went along with deleting the story in order to protect their faculty adviser. But they didn’t stop there. They contacted the Student Press Law Center in Washington, which informed them that school officials were violating a Vermont law aimed at protecting student journalists from censorship.

Retired Free Press reporter Michael Donoghue, who is first vice president of the New England Coalition and president of the Vermont Press Association, praised The Register’s story, saying in an interview with his old paper, “There was no interpretation or slant. They wrote a factual report based on public documents.”

Ironically, the state law that ultimately led to the students’ victory had been enacted two years earlier after school authorities killed a story in The Register about a sign held up at a football game claiming facetiously that Burlington players were gang members or convicts. Without that law, the more recent controversy might have had a different outcome.

“This has been the biggest learning experience of our lives,” Julia Shannon-Grillo, one of the students who was honored last February, told the Free Press.

The award citation put it this way: “By appearing at city meetings, speaking to the media and working with press and First Amendment groups, the student journalists prevailed in their battle with the administration and reposted their story. The School Board appointed the editors to a special committee to review the school’s student publication policies to assure that they conform to state and federal law. As a result of the students’ efforts, Burlington High School now has an updated policy that is designed to prevent similar censorship in the future.”

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Also: Be sure not to miss Harvey Silverglate’s Campus Muzzles, his annual round-up of outrages against free speech at colleges and universities in New England.

Danny Schechter’s legacy and the passion of Julian Assange

Danny Schechter in Almaty, Kazakhstan. Photo (cc) 2009 by Dan Kennedy.

Previously published at WGBHNews.org.

The news was disorienting: WikiLeaks founder Julian Assange, whose alleged misdeeds range from sexual assault to acting as a Russian intelligence asset, would be honored with an award named after the late Danny Schechter, one of my journalistic role models.

Assange was recently charged under the Espionage Act for his part in obtaining and publishing secret U.S. documents supplied to him by Chelsea Manning, a former Army private. According to Rory O’Connor, Schechter’s longtime business partner, that is precisely why Assange has been named this year’s recipient of the Danny Schechter Global Vision Award for Journalism and Activism.

Schechter, who died four years ago, spent a long and productive career as a left-wing journalist, from his days as the WBCN “News Dissector” in Boston during the 1970s to a respected documentarian and author about issues such as apartheid, economic injustice, and media reform. Schechter was someone I probably checked in with a couple of times a year. In 2009, he and I covered a protest against internet censorship that broke out while we were attending a conference in Kazakhstan. Given all that, I wasn’t sure I was on board with O’Connor’s reasoning.

“The Assange case represents a threat not only to freedom of expression but also to the heart of American democracy itself,” O’Connor wrote. And in a retort to those who argue that Assange is not a journalist, O’Connor observed that Assange has in fact engaged in journalism of a sort: “Much of what he does, after all, involves selecting, editing, verifying and even contextualizing news material.”

Trouble is, Assange was a lot easier to defend back in 2010, when WikiLeaks and Manning were exposing American wrongdoing in the Iraq war, including looking the other way as Iraqi forces tortured prisoners. At that time, Assange appeared to be an honest exemplar of radical transparency. In those days I wrote a weekly column for The Guardian. And I argued that the Obama administration, which was reportedly looking into bringing charges against Assange on the theory that he had colluded with Manning, would be endangering First Amendment protections for mainstream news organizations.

I didn’t see then, and I don’t see now, how any news organization can be said not to have colluded with a source when it receives leaked documents. Didn’t the Times and The Washington Post collude with Daniel Ellsberg when they received the Pentagon Papers from him? Yes, there are differences. Ellsberg had finished making copies long before he began working with the Times, whereas Assange may have goaded Manning. But does that really matter?

The Obama administration, fortunately, decided to back off. But that was a long time ago. Assange, always a problematic figure, looks a lot worse today than he did then. In addition to extremely serious sexual assault charges against him and his role in Russia’s internet campaign against Hillary Clinton in the 2016 election, Assange spent years evading the authorities by holing up in the Ecuadorean embassy in London, where he reportedly degenerated into the guest from hell, paying little attention to his personal hygience and possibly even neglecting his cat.

All of which, counterintuitively, is why the Danny Schechter Award may actually make sense. President Trump has been trying to delegitimize journalism since he launched his campaign four years ago, denouncing news organizations as “the enemy of the people” and vowing to end some libel protections for the media. Seen in that light, Assange is the ideal conduit through which to undermine freedom of the press. If you don’t want to defend Assange, you may not get the chance to defend The New York Times. If investigative reporting is redefined as a criminal act, who will hold the powerful to account?

When Assange was first charged several months ago it looked like the Trump administration was deliberately avoiding the most provocative course of action. Assange was not initially charged under the Espionage Act, but rather was accused of actively helping Manning steal documents — an activity that most definitely is not protected by the First Amendment.

Even so, there were hints of what was to come. Mathew Ingram, writing at the Columbia Journalism Review, pointed out that the FBI’s affidavit described behavior on Assange’s part such as taking steps to keep his relationship with Manning secret, including the use of encrypted messaging. These days, many top news organizations actively solicit secret documents through encrypted portals. Here, for example, is The Washington Post’s. If Assange broke the law, what about the Post and all the others?

Ingram added: “The affidavit also says Assange collaborated with Manning on ‘the public release of the information’ — in other words, publishing. It goes on to allege that Assange broke the law in part by receiving classified documents without a security clearance, something investigative journalists often do.”

The threat became more ominous last month, when the Trump administration added Espionage Act charges to the case against Assange. The government has never followed through on threats to use the World War I-era law to punish news organizations for publishing classified documents, despite threats to do so after the Pentagon Papers were made public and after The New York Times reported on the George W. Bush administration’s secret (and probably illegal) domestic spying program.

Now Assange has emerged as a test case — and if he loses, it’s hard to imagine why our leading news executives would be exempt. “For good reason, press-rights advocates are far more alarmed now than they were last month when Assange was initially indicted,” wrote Margaret Sullivan, the Post’s media columnist. She added: “What’s alarming about the indictment is the way it would criminalize some of the basic functions of newsgathering and publication.”

In his essay announcing the Danny Schechter Award, O’Connor wrote, “The charges against Assange make the ultimate targets of his prosecution clear: journalists worldwide. Prosecutors are using the case against him to mask a blatantly political campaign to limit all journalists — a cornerstone of the Trump agenda often expressed by the president himself.”

Given all that, I’m not worried about Danny Schechter’s legacy being sullied. In fact, he’d probably love the idea of using an award named after him to shine a spotlight on Assange. Saints and sinners alike deserve the protection of the First Amendment — and sinners, after all, are more in need of it.

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Why the Globe’s pullback on the Kraft video is a mistake

The Boston Globe has dropped out of the legal battle for the Robert Kraft sex video, according to Deadspin. In a statement, the Globe said it no longer had any interest in obtaining the video since Florida authorities had backed off their original claim that human trafficking was involved. The statement said in part:

Authorities have now said the charges against Robert Kraft are not part of a human trafficking case. While we still have an interest in video from outside the spa, we’ve decided to focus our energy on the famously weak public records laws of Massachusetts.

Here’s the problem. Florida’s public records law is well-known for its all-encompassing nature, and that’s good for open government and a free press. Though it’s true that no one needs to see the video outside the criminal justice system, any chipping away of free press rights could have unanticipated negative effects somewhere down the road.

Bad move. Fortunately, about 20 other news organizations continue to seek the video.

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Julian Assange, freedom of the press, and the meaning of journalism

Julian Assange. Photo (cc) 2011 by The Naked Ape.

The arrest of WikiLeaks founder Julian Assange in London raises the possibility — make that the likelihood — that he will be prosecuted in the United States for revealing military secrets provided to him by former Army private Chelsea Manning. What does this mean for freedom of the press?

As I argued in The Guardian in 2010, when it appeared that the Obama administration was prepared to bring charges against Assange, there was no practical or ethical way of drawing a distinction between WikiLeaks and mainstream news organizations such as The New York Times, The Washington Post and The Guardian, all of which have published military secrets that were leaked to them, most famously the Pentagon Papers.

The principle that U.S. officials have generally followed is that leakers such as Manning, Daniel Ellsberg, Reality Winner and, if he is arrested, Edward Snowden may be prosecuted, but journalists are left alone — even though they could at least theoretically be charged under the World War I-era Espionage Act. The government has tried to argue that WikiLeaks colluded with Manning in his theft of documents, although even then it’s hard to see how that goes beyond normal journalist-source conversations.

Of course, a lot has happened since 2010. The First Amendment would almost certainly not protect Assange if he is charged with being an agent of the Russian government in connection with the leak of Hillary Clinton’s emails in 2016. But based on what we knew as of 2010, I think this column holds up rather well.

WikiLeaks and the First Amendment

An Obama administration prosecution of Julian Assange over the embassy cable leaks would be an assault on press freedom

By Dan Kennedy | The Guardian | Dec. 16, 2010

President Obama has decided to pursue a dangerous strategy that could cause irreparable harm to freedom of the press as we know it. According to Charlie Savage of The New York Times, Attorney General Eric Holder is investigating the possibility of prosecuting WikiLeaks founder Julian Assange in connection with the 250,000 diplomatic cables stolen — according to the government — by army private Bradley Manning.

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Clarence Thomas wants to eviscerate the First Amendment

The ad that led to a landmark libel ruling.

Previously published at WGBHNews.org.

If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.

Let me explain. On Tuesday, Thomas wrote that the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.

Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”

But the Sullivan decision was grounded in the failure of states to respect the right of the press to engage in “uninhibited, robust, and wide-open” debate, as the court put it, including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The truth of the matter is that members of the white power structure in the South were seeking to weaponize libel laws in order to prevent the national press from reporting on its suppression of the civil rights movement. If the court hadn’t intervened, they would have gotten away with it.

The story of Times v. Sullivan is well told in Anthony Lewis’ book “Make No Law: The Sullivan Case and the First Amendment.” Supporters of the Rev. Martin Luther King Jr. took out a full-page ad in The New York Times in March 1960 titled “Heed Their Rising Voices.” The ad contained several minor errors of fact. For instance, it stated that King had been arrested seven times on trumped-up charges; in fact, he had only been arrested four times. It said that black students at Alabama State College in Montgomery, Alabama, had been padlocked into their dining room “in an attempt to starve them into submission” — a bit of hyperbole that was not literally true.

L.B. Sullivan, the Montgomery city commissioner in charge of the police, sued the Times for libel even though his name appeared nowhere in the ad. Sullivan won a three-day trial in Alabama state court that was rigged in his favor. For instance, the following year, on the 100th anniversary of the founding of the Confederacy, Sullivan staged a re-enactment of the swearing-in of Confederate president Jefferson Davis, with the same judge who had presided over his libel trial administering the oath of office.

It was against this deeply racist backdrop that the Supreme Court acted to end such abusive libel cases in 1964. The solution hit upon by Justice William Brennan, who wrote the decision, was to hold the press harmless for unintentional errors of fact. As Andrew Cohen wrote in The Atlantic upon the 50th anniversary of the case several years ago, “If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.” Or as Lewis himself put it in another of his books, “Freedom for the Thought That We Hate: A Biography of the First Amendment,”“New York Times v. Sullivan revolutionized the law of libel in the United States.”

My contention that Justice Thomas would bring us back to the pre-Civil War era is based on his apparent contempt for how the 14th Amendment was used to extend freedom of the press. The amendment, adopted in the immediate aftermath of the Civil War, forbids the states from trampling upon rights guaranteed by the U.S. Constitution. It took a while for the Supreme Court to rule that the First Amendment was among those rights. But in the case of Gitlow v. New York (1925), the court cited the 14th Amendment in extending its jurisdiction for the first time over state laws regulating speech.

No matter that Benjamin Gitlow, the hapless communist who’d been convicted of violating New York’s criminal syndicalism law for publishing a turgid left-wing manifesto, was sent to prison anyway. By recognizing that “freedom of speech and of the press” are protected “from impairment by the States,” the court transformed “Congress shall make no law … abridging the freedom of speech, or of the press” into a guarantee pertaining to state and local government as well.

Thus Justice Thomas demonstrates not only ahistorical disdain for the role that combatting racism played in the Sullivan decision but also for the long-settled principle that state and local governments may not take away protections guaranteed by the Constitution. In his opinion this week, Thomas pays lip service to the 14th Amendment. But it’s hard to square that with his enthusiasm for turning over basic press protections to the tender mercies of the states.

Fortunately Thomas seems likely to find himself alone on this. President Trump, as we know, has spoken of his desire to “open up our libel laws.” But Adam Liptak, who covers legal affairs for the Times, wrote on Tuesday that both of Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh, have spoken approvingly of Times v. Sullivan. The decision appears to be safe — at least for now.

Still, Thomas’ out-of-the-blue opinion — expressed in a decision about a libel suit involving Bill Cosby, of all things — shows that the battle for free speech is never completely won. Rather, it has to be fought, over and over again.

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Efforts to strengthen the state’s public-records law fall apart

Several years ago the Massachusetts Legislature strengthened the state’s public-records law — but it is still among the weakest in the country. Now a commission aimed at reforming the law still further has disbanded without producing any recommendations, according to Todd Wallack of The Boston Globe.

The law currently applies only to the state’s executive agencies as well as to records kept by cities and towns. The Legislature, the courts and the governor’s office are all exempt.

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Alex Jones and the privatization of free speech

Alex Jones with fans. Photo (cc) 2006 by Nick Mollberg.

Previously published at WGBHNews.org.

Alex Jones is the sort of dangerous crank that freedom of speech was designed to protect. When the late Anthony Lewis wrote his “biography” of the First Amendment, he titled it “Freedom for the Thought That We Hate.” We don’t need constitutional protections to report on the church picnic. We need them to make sure that the most loathsome among us are allowed to spread conspiracy theories, spout vile insults, and stage outrageous demonstrations of hatred and prejudice.

And no, Jones is not in danger of losing his First Amendment rights. The government has not attempted to silence him. His website, InfoWars, continues to be a popular stop for those on the extreme right. He is facing a lawsuit from several of the Sandy Hook families, whom he had cruelly accused of staging an elaborate hoax. But that, too, is part of the First Amendment.

The problem is that Jones illustrates perfectly a dilemma that some of us have been warning about for years: the privatization of free speech. As you may know, Jones in recent months has been banned from Facebook, Twitter, and other platforms. Last Friday he was cut off by PayPal as well. He’s going to need to find another way for his customers to pay him for those InfoWars Life Super Male Vitality supplements.

No one seriously questions the right of the tech platforms to banish Jones to the far corners of the internet. These services are owned by giant corporations that became fabulously wealthy (Facebook) or at least marginally profitable (Twitter) by offering their customers a controlled experience. Algorithms determine what you are most likely to see, especially on Facebook. Their policies prohibit nudity (usually), profanity (sometimes), copyright violations, and — especially as the manipulation of the 2016 election becomes clear — fake news aimed at swaying public opinion.

This would all be fine except that the platforms — and Facebook in particular — have become our new civic commons. As Josh Marshall, the founder and editor of the liberal website Talking Points Memo wrote recently, “To a real extent, the places you can exercise your speech these days are on YouTube, Facebook, Twitter and other platforms. That is really the heart of the problem. A big part of the public square has been gobbled up by closed systems: Facebook especially, but also Google’s YouTube, Twitter, et al.”

Now, as I said, no one is threatening Jones’ ability to reach millions of people through his website, although the weight of his legal problems might put him out of business. (Which would be fine with me.) If need be, he could host his site in another country, or from a server in his basement. But, these days, the platforms are how we extend our reach beyond the relatively small number of people who make the effort to seek us out. Early indications are that traffic to InfoWars dropped by half following Jones’ disappearance from Facebook. Again, that’s fine; Facebook, far from doing anything wrong, is acting responsibly. But with some 2.2 billion active monthly users, Facebook simply has too much power and influence to be trusted as a conservator of the First Amendment.

As Micah Sifry, who writes about the intersection of technology and civic life, put it in The New Republic, Facebook has usurped our initial hopes that the internet would spark a “civic renaissance” by democratizing information and giving everyone a voice:

With 68 percent of Americans currently using Facebook, it has become the nation’s de facto digital public square, at least in part because the country’s political leaders lacked the civic imagination to insist on a public alternative. With their tacit approval, Facebook built a giant garden for its users, walled off from the open internet. And then, taking advantage of its popularity, Facebook started copying and replacing older public forms of civic engagement with new ones that only live inside its platform.

There is nothing new about this, and in some respects it predates technology. In 2003 I bestowed a New England Muzzle Award (then hosted by The Boston Phoenix, now by WGBH News) upon a mall in the almost-New England suburbs of Albany, New York, for calling police and having a man arrested because he was wearing an antiwar T-shirt. Shopping centers have essentially become the new village square, except that they’re geared toward commerce rather than civic life. In 2017, I awarded Muzzles to YouTube (owned by Google) for suppressing a pro-Israel video by Harvard Law School professor Alan Dershowitz and to Instagram (owned by Facebook) for deleting a photo of a nude painting posted by the Museum of Fine Arts. Technology companies have become so powerful that they need to take their First Amendment responsibilities seriously.

But the platforms are not common carriers like telephone companies, which are obligated to carry any calls and data that come their way. Nor are they the internet itself, although there’s plenty of reason to be concerned about the possibility of censorship now that President Trump’s FCC has done away with net neutrality. The solution, if there is one, is to draw people away from Facebook and toward an idea animated by something other than the profit motive. “If Americans truly want a digital public forum centered on the needs of the citizenry,” writes Sifry, “it has to be built and maintained the same way they’ve built and maintained America’s national parks — as public goods open to all.

Which brings me back to Alex Jones. In theory, his freedom to speak and to publish are intact. In reality, he can’t gain access to the platforms he needs to get his message out. Jones, of course, must be held accountable for the Sandy Hook families who’ve had to go into hiding because of his vicious lies, and for promoting crazy conspiracy theories like the Pizzagate child-sex ring tied to Hillary Clinton, which prompted a deranged individual to show up and start shooting.

The semi-censorship to which Jones has been subjected — quieted, but not silenced — may seem like a small price to pay in order to stop him from harassing innocent people and putting their lives in danger. Given the media environment as it currently exists, the platforms did the right thing by taking away his megaphone. But their actions only underscore what we have lost by granting custody of our free-speech rights to private entities beyond our control. Next time it might be someone who’s far less malevolent than Jones.

We really need to ask ourselves whether we want that accountability to come in the form of giant corporations silencing him simply because it’s good for business. I would not tell Mark Zuckerberg how to run his company, although even he has suggested that he would not be averse to some common-sense regulations. Like Sifry, though, I believe the time has come to try to revive the idea of the internet as a truly public space rather than the private playground of tech billionaires.

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Judge extends censorship in plastic-handgun case

In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.

Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.

Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”

And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.

Massachusetts Attorney General Maura Healey, who joined the suit, is celebrating Judge Lasnik’s ruling. Healey, I should note, is a two-time winner of a New England Muzzle Award from WGBH News for her less-than-vigorous support of the First Amendment.

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