The end of net neutrality will cripple the First Amendment

FCC chair Ajit Pai

Previously published at WGBHNews.org.

The guiding principle behind the First Amendment is that we all have a right to be heard. It is up to each of us, of course, whether we choose to listen. But no one — not the government, and certainly not the giant corporations that control so much of our communications infrastructure — may prevent anyone’s speech from competing in “the marketplace of ideas.”

But now that the internet has become by far the most important and prevalent means for conveying free speech, the demise of the First Amendment may be at hand. If, as expected, the Federal Communications Commission votes on Dec. 14 to do away with net neutrality, then the distribution of news, information, and entertainment will become utterly dependent on the whims of internet service providers (ISPs) such as Comcast and Verizon. If you want your website to load quickly and be easily accessible, then you may have to pay a fee to the ISPs. And if you can’t afford it, well, too bad.

Net neutrality is the idea that all internet traffic should be treated equally — that ISPs shouldn’t be able to speed up some services that are willing to pay and slow down or even block others. A hot topic for many years, it was finally enacted as a binding rule by President Obama’s FCC in 2015. With President Trump now in charge, though, the FCC has a new Republican chair — former (and, no doubt, future) telecom lawyer Ajit Pai — and a three-to-two Republican majority.

Hypotheticals put forth by net-neutrality advocates tend to focus on non-journalistic scenarios. For instance, in 2004, according to a Daily Dot round-up of net-neutrality violations, a North Carolina telecom called Madison River Communications blocked Vonage as it was attempting to launch its voice-over-internet phone service. The problem, you see, was that Vonage threatened Madison River’s landline business. The FCC, then as now under Republican control, fined Madison River $15,000, which just goes to show that dog-eat-dog capitalism was not always a matter of GOP orthodoxy. In 2011, reports the media-reform organization Free Press, Verizon blocked the Google Wallet payment system so that it could promote its own software instead. There are plenty of other examples as well.

The threat to journalism posed by the end of net neutrality is also very real. Imagine that a major media corporation owns the largest television station and largest newspaper in a given market (now allowed thanks to the FCC’s recent decision to abolish the cross-ownership ban), and that it pays the telecoms a hefty fee to guarantee that its digital platforms will load quickly and play video flawlessly. How can, say, a small start-up news organization compete?

Or imagine a ban on certain types of content — as happened in 2007, when Verizon briefly blocked pro-abortion-rights text messages. As the St. Louis-based commentator Sarah Kendzior wrote Sunday in The Globe and Mail of Toronto:

The threat to net neutrality highlights the reliance on social media and an independent press for political organizing in the digital age. Should net neutrality be eliminated, those avenues will likely become curtailed for much of the public or driven out of business due to loss of revenue. Without the means to freely communicate online, citizens will be far less able to challenge the administration. It doesn’t matter what cause someone prioritizes: The elimination of net neutrality will impede the ability to understand the cause, discuss it and organize around it.

So what is to be done? At this point, it may seem hopeless. The FCC will repeal net neutrality, and that’s the end of it. But there are a few threads we can grasp onto.

For one thing, we are beginning to learn that many of the messages the FCC received in support of ending net neutrality were bot-generated fakes. It’s not clear exactly how many, but Eric Levitz reports in New York magazine that more than a million identical anti-net neutrality messages had a pornhub.com email address. New York Attorney General Eric Schneiderman is investigating, and has complained that the FCC is being uncooperative in turning over the documents he needs.

For another, it is possible that the legal system may intervene and keep net neutrality alive. Columbia University law professor Tim Wu wrote in The New York Times last week that “by going this far, the FCC may also have overplayed its legal hand. So drastic is the reversal of policy (if, as expected, the commission approves Mr. Pai’s proposal next month), and so weak is the evidence to support the change, that it seems destined to be struck down in court.”

Finally, it’s never over until it’s over. Last week Jessica Rosenworcel, a Democratic member of the FCC, wrote an op-ed for the Los Angeles Times urging the public to speak out and stop the agency from voting for repeal. “Before my fellow FCC members vote to dismantle net neutrality, they need to get out from behind their desks and computers and speak to the public directly,” she said. “The FCC needs to hold hearings around the country to get a better sense of how the public feels about the proposal.”

Despite all this, it is more likely than not that the FCC will repeal net neutrality. What options will we then have? Perhaps a company with real financial power, such as Google or Amazon, will roll out its own network, with net neutrality guaranteed. All you would have to lose is your privacy, or what little remains of it. Or, as this Vice story recommends, we should encourage the development of local ISPs, including municipally owned systems. (Thanks to the indefatigable Saul Tannenbaum for sending me the link.)

It would all be so much easier, though, if the FCC did the right thing. If you favor keeping net neutrality, what is the best way of registering your views? The FCC website is a maze. But Free Press has started a petition urging Pai to cancel the Dec. 14 vote and leave net neutrality in place. As a journalist, I rarely take direct political action except in matters like this, where freedom of speech and of the press is at stake. I’ve signed, and I hope you’ll consider doing so as well.

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Trump’s accidental transparency does not negate his anti-free speech agenda

“Censorship” (cc) 2006 by Bill Kerr

Previously published at WGBHNews.org.

Talk is cheap. If President Trump actually followed through on his multifarious threats against the First Amendment, then those of us who report and comment on the news would already be on our way to a detention camp — a beautiful detention camp, for sure — somewhere in the empty spaces of Oklahoma.

He has, after all, threatened to undo the laws that protect journalists from frivolous libel suits. He has said that he would revoke Amazon’s (nonexistent) tax breaks in retaliation for the harsh coverage he’s gotten from The Washington Post, owned by Amazon chief executive Jeff Bezos. His attorney general, Jeff Sessions, has said that he may unleash a wave of subpoenas that would force reporters to identify anonymous leakers. And just recently, Trump demanded a Senate Intelligence Committee investigation into media organizations that report what he calls “fake news” and suggested that the broadcast licenses held by NBC should be revoked.

But Trump in theory and Trump in practice are two entirely different things. Though his anti-press rhetoric can be frightening at times, his follow-through has been pretty much nonexistent. Meanwhile, as First Amendment expert Jameel Jaffer says, Trump could legitimately if inadvertently lay claim to presiding over “the most transparent administration in history,” to invoke a solemn promise by Barack Obama that unfortunately preceded eight years of stonewalling on public records as well as an unprecedented crackdown on leakers.

“To say that the Trump administration leaks like a sieve would be very unfair to sieves,” Jaffer said Tuesday evening at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy. Moreover, Trump’s Twitter feed — he has tweeted more than 2,000 times since Election Day — offers a look into “the unvarnished presidential id,” Jaffer said, quoting Nixon biographer John Farrell.

Jaffer, currently the executive director of the Knight First Amendment Institute at Columbia University, had previously served as deputy legal director for the ACLU. His work on a lawsuit aimed at shaking loose documents from the George W. Bush administration resulted in the publication of the so-called torture memos — the legal rationale produced by the White House to justify waterboarding and other inhumane tactics used in questioning terrorism suspects.

Despite Jaffer’s backhanded praise for Trump, he is hardly sanguine. For one thing, he noted, Trump’s tweets come at us in such volume that they distract us and distort the public discourse. “We should be careful not to mistake noise for transparency,” he said. In addition, seeming openness in one realm is often used to mask efforts to cover up information elsewhere. For instance, the White House recently released an eight-minute video on its efforts to deal with the disastrous aftermath of Hurricane Maria in Puerto Rico while simultaneously removing statistics related to the relief effort from government websites.

Trump’s rhetorical attacks on the press — including his references to news organizations as “the enemy of the American people” — need to be taken seriously as well, Jaffer said. He called those attacks “an assault on transparency” aimed at undermining faith in the media, calling into question even “provable truths.” The effect, he said, is to replace journalists with Trump himself as the arbiter of what is true and false. And at least among his strongest supporters, he’s had some success. For instance, a Morning Consult/Politico poll released on Wednesday found that 46 percent of those surveyed “believe major news organizations fabricate stories about Trump.” That proportion rises to a stunning 76 percent among Republicans. (For a full breakdown, click here and turn to page 146.)

“If this is transparency at all,” Jaffer said, “it is transparency we should distrust and interrogate rather than applaud.”

My own fear — and I think Jaffer would agree — is that Trump has stirred up such hatred for the media (not that we were ever popular) that basic press protections could be in danger. Yes, you can believe that the courts will protect us; Trump’s Supreme Court justice, Neil Gorsuch, whatever his other shortcomings, seems as likely to support a robust First Amendment as his colleagues. But as Charles Pierce recently noted at Esquire.com, we are closer than you might think to the unthinkable prospect of a constitutional convention at which everything would be up for grabs, including the Bill of Rights. I do not assume that basic constitutional guarantees would survive in the current environment.

As I said, talk is cheap. But talk such as Trump’s cheapens the public discourse, giving people permission to indulge their hatreds and prejudices. We’re already seeing it happen.

At the end of Jaffer’s lecture, he was asked what makes him hopeful in this dark time. His response: The outpouring of protest against the racist violence in Charlottesville, Virginia, including tens of thousands of people in Boston who demonstrated against hate. “It’s a great relief to me to see people coalescing around this stuff,” he said.

So is Trump a threat or a menace to the First Amendment? I think it’s important to separate Trump’s words from his actions. To this point, at least, the president’s anti-media rhetoric has had no more effect than his attacks on Obamacare (dismantledlast Thursday; revived with his support on Tuesday), or his ever-shifting views on tax cuts. My philosophy: Keep a close ear out for what he says — but don’t panic until he actually does something.

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What if the First Amendment were as untouchable as the Second?

I’ve been trying to think through what would change if the First Amendment were as untouchable as the Second. I’m sure this is an incomplete list, but here are a few ideas that come to mind:

  • Child pornography would be legal. It might still be illegal to make it because of the horrific child abuse it would entail. But sell, distribute or possess it? No problem.
  • Obscenity in general would be legal. This is a very slippery concept, and in fact it is difficult to know exactly what would be considered obscene circa 2017. But depictions of bestiality or rape would be fine. As with child pornography, it’s possible that someone could be prosecuted for the underlying acts, but not for selling, distributing or possessing it.
  • Libel would cease to exist. Want to publish something false and defamatory about someone? Go for it. And don’t worry about whether she’s a private figure. That distinction is so 20th-century.
  • If the United States is at war, and you somehow come into possession of plans detailing the specifics of an operation against enemy troops, well, go ahead and publish them. Under our new, absolutist First Amendment, Col. Robert McCormick did nothing wrong.
  • If you’re, say, a Ku Klux Klan leader, and you exhort a mob to lynch a black man standing at the periphery of the crowd, and they do it, you have nothing to worry about. The criminals who actually carry out the deed could be prosecuted for murder, of course, but under an absolutist view of the First Amendment there would be no such thing as incitement.

No rational person, of course, would support any of these changes to the First Amendment. Even someone who considers himself pretty much an absolutist, as I do, has to acknowledge that not every single form of expression can be protected by the Constitution. So why can’t extreme gun-rights advocates see that they’ve abandoned all rationality?

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The kids are all right: Why concerns about free speech on campus may be overblown

Demonstration at Berkeley Free Speech Week. Photo (cc) 2017 by Pax Ahimsa Gethen.

Previously published at WGBHNews.org.

Do college students fear the First Amendment? You would think so, based on the results of a survey published last week by the Brookings Institution, which found that the nation’s campuses are a bastion of political correctness whose coddled denizens favor the warmth of safety and like-mindedness over the brisk waters of vigorous, uncomfortable debate.

But as someone who has been teaching college students for a dozen years, the results struck me as entirely at odds with what I hear from the smart, thoughtful young men and women I deal with every day. Last week I put that proposition to the test. I’ll get to that in a bit — but first some background.

The study was led by Brookings and UCLA scholar John Villasenor, who said he surveyed some 1,500 students in 49 states. Certainly if Villasenor’s findings are accurate, then there is plenty of cause for concern. Among other things, he found that a plurality of students (44 percent to 39 percent) wrongly believe that the First Amendment doesn’t protect hate speech; that 51 percent say it is acceptable for students to shout down a speaker “known for making offensive and hurtful statements”; and that 19 percent even think it’s all right to engage in “violence to prevent the speaker from speaking.” Villasenor wrote:

The survey results establish with data what has been clear anecdotally to anyone who has been observing campus dynamics in recent years: Freedom of expression is deeply imperiled on U.S. campuses.

Villasenor’s work created something of a media sensation, playing as it did into stereotypes that today’s generation of students are delicate snowflakes who’d rather walk out on a speaker whose views they disagree with than listen to ideas that challenge their preconceived notions. Washington Post columnist Catherine Rampell put it this way: “Here’s the problem with suggesting that upsetting speech warrants ‘safe spaces,’ or otherwise conflating mere words with physical assault: If speech is violence, then violence becomes a justifiable response to speech.”

And for a public saturated by media reports of campus intolerance directed at controversial right-wing speakers such as Ann Coulter and Milos Yiannopoulos, the findings seem like they must be true. Attorney General Jeff Sessions joined in the pile-on this week, telling an audience at Georgetown University that “freedom of thought and speech on the American campus are under attack.” But if you’re looking to the Brookings survey for confirmation of such sentiments, you may find that you need to look elsewhere: the methodology is being seriously questioned.

Lois Beckett of The Guardian administered a thorough thrashing to Villasenor, quoting a polling expert that his results amounted to “malpractice” and “junk science” and that “it never should have appeared in the press.” Beckett’s most serious charge was that, rather than polling 1,500 randomly selected students, Villasenor relied on an opt-in online panel of respondents who said they were college students. In other words, the survey was not much different from being urged to visit a political website after a candidates’ debate and registering your opinion as to who won. “If it’s not a probability sample, it’s not a sample of anyone, it’s just 1,500 college students who happen to respond,” the polling expert, Cliff Zukin, told Beckett.

Some of Beckett’s complaints seem petty. For instance, she notes — as Villasenor acknowledges — that the study was funded by the libertarian Charles Koch Foundation. Frankly, though, a reputable organization like Brookings is accustomed to dealing with such funding issues, and it seems unlikely that the malign hand of the Koch brothers reached in to alter the results. (As you may know, David Koch’s service on the WGBH board was the source of some controversy several years ago. He is not currently a member.) Beckett also dismisses Villasenor on the grounds that he is an electrical engineer. But according to his Brookings biography, he appears to be something of a polymath whose academic interests include public policy and law. Still, Villasenor’s use of an opt-in questionnaire rather than a random survey calls his findings into question.

Last week I conducted my own non-scientific survey of the nearly 50 students who are enrolled in my introductory course at Northeastern University on journalism and the news media. About half are journalism majors; the rest are from across the university and are studying in fields such as business, computer science, and, yes, electrical engineering.

We went into some depth. I organized the class into five teams, each of which spent about 20 minutes wrestling with one of the five questions on Villasenor’s survey. That was followed by team presentations and, finally, a show of hands on the five questions.

Now, obviously, asking people to take a stand in full view of their peers is problematic, so I don’t want to make any great claims for the accuracy of my survey. But the findings matched the comments made during class discussion. And they were heartening. Thanks to one well-informed student, they all learned that hate speech is, in fact, protected by the First Amendment. What impressed me was that after hearing that, an overwhelming majority agreed that such speech should be protected.

Only a handful of students thought it was acceptable to shout down a speaker — and they made it clear that they believed as they did because protesters also have First Amendment rights. Not a single student came out in favor of violence. On the question of whether a university must balance controversial speakers with those of opposing views, the consensus was that such balance should emerge in the selection of speakers over time — not that every controversial speaker should be expected to debate an opponent. They also overwhelmingly agreed with the proposition that a university should foster an “open learning environment where students are exposed to all types of speech and viewpoints” (to use the survey’s wording) rather than create “a positive learning environment for all students by prohibiting certain speech or expression of viewpoints.”

Every year my friend and colleague Harvey Silverglate, a leading civil-liberties lawyer, writes a round-up of outrages against free speech at colleges and universities called the “Campus Muzzles.” Free speech is a real issue on many campuses, and I don’t want to assume that Northeastern is an exception.

Neither, though, am I worried about the future of political discourse as the next generation assumes positions of influence and power. The anti-First Amendment forces are a minority. Antifa is real but tiny. My experience is that most college students are smart, tolerant, and eager to hear all points of view — including those that clash with their own beliefs.

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New Hampshire official in spotlight won a Muzzle Award earlier this year

Illustration by Emily Judem of WGBH News

New Hampshire secretary of state Bill Gardner, who has refused calls to resign from President Trump’s bogus voter-fraud commission, won a New England Muzzle Award from WGBH News earlier this year. His dubious achievement: continuing to fight against the scourge of ballot selfies, a form of free expression that several federal courts have ruled is protected by the First Amendment.

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The real target of the Boston counter-protest was Trump

Bonita Yarboro traveled with three friends from Hamden, Connecticut, to protest against “racism, anti-Semitism, every -ism out there.” Photo (cc) by Dan Kennedy.

Previously published at WGBHNews.org.

There’s been so much written and said about free speech and the lack thereof at Saturday’s rally on the Boston Common that the big picture is in danger of being lost. So let me try to bring it back into focus. An estimated 30,000 to 40,000 people turned out not to protest what a few right-wingers had to say or to rumble with the police. Rather, they came to express their anger and disgust with President Trump.

Lest we forget, back in May a similar event drew just a few hundred people, with the two sides being kept apart by police officers. We might have seen a similar response this past weekend. But then a motley band of white supremacists and neo-Nazis marched in Charlottesville, Virginia. A fellow-traveler was accused of driving into a crowd of people who had come to protest against such hate, killing one of them, Heather Heyer. And Trump, on his third attempt to address what had happened, threw a temper tantrum of a news conference in which he placed racists and those who oppose racism on the same moral plane.

It was that reality that was on the minds of those who showed up at the Reggie Lewis Center in Roxbury on Saturday morning. I was among them, carrying a notebook and a smartphone with handmade press credentials around my neck so no one would think I was one of the protesters. The crowd reminded me of the folks who’d turned out in Copley Square last January to protest Trump’s first, botched Muslim ban: earnest liberals from the suburbs, Black Lives Matter activists, young people, LGBTQ people, lots of racial diversity, lots of ink (not visible last winter), and a large number of clergy. Mayor Marty Walsh, Police Commissioner Bill Evans, and Attorney General Maura Healey all put in appearances on Saturday.

There were, of course, a few political radicals on hand. Two older women who would only give me their first names held up a large banner that said “No Free Speech for Fascists” — and, in smaller type, “Progressive Labor Party,” a far-left group. I asked them if they thought their views contradicted the First Amendment’s guarantee of free speech. “There is no free speech,” Ruth instructed me. “Speech costs a lot of money.” Added Heidi: “We need to stop this hate speech.”

More typical was a young African-American woman named Bonita Yarboro of Hamden, Connecticut, who was holding a green sign that read “I am Black and I MATTER. Any questions?” I asked her what had brought her to Boston and what her hopes were for the counter-protest, dubbed “Fight Supremacy” by its organizers. “Four of us came up together in a Volkswagen Beetle,” she said. “I just want to stand up against racism, anti-Semitism, every -ism out there.”

We got under way a little before 11. The march down Tremont Street toward the Boston Common was a rolling celebration. The police officers who lined the route were professional and friendly. Charlie Pierce wrote in Esquire that Police Superintendent Willie Gross was posing for selfies with marchers.

By 1, with our destination still ahead of us, word started to ripple through the crowd that the rally was over and that the right-wing speakers had left. With the Common just ahead of me, I spotted state Rep. Byron Rushing, a South End Democrat, who told me he’d been prohibited from entering the 75-yard zone around the Parkman Bandstand that police had set up to protect the speakers. “I came down to hear them, and they wouldn’t let me in,” he said. “Freedom of speech should be reciprocal. If they can talk, I should be able to listen.”

In fact, there remain some legitimate concerns about how the authorities handled access to the bandstand. The police department had a genuine public-safety challenge on its hands, and the buffer zone was probably a necessity — but it wouldn’t have been as onerous if, say, a few pool reporters had been allowed in to hear what the speakers had to say. It didn’t help that Commissioner Evans issued a statement in which he said it was “a good thing” that the right-wingers couldn’t get their message out. The ACLU and others have expressed concern.

But the triumph of the counter-protest was not that it had silenced a few extremists (and it’s not even clear how extreme they were, given that some who had been scheduled didn’t show up). The triumph was that the crowd had expressed its opposition to the racism and hatred that these days is indulged, even amplified, by the president of the United States. I couldn’t help but feel a surge of patriotism in the face of such idealism.

Trump’s outrages come at us every day. But his sociopathic reaction to the events in Charlottesville seems like a watershed moment of the sort that greeted the “Access Hollywood” tape, on which he was heard profanely bragging about groping and sexually assaulting women. From business leaders to Republican officials, a new wave of people has begun moving away from him. Republican Sen. Bob Corker of Tennessee, presidential historian Douglas Brinkley, and investigative reporting legend Carl Bernstein are among the serious, careful folks who recently have questioned Trump’s mental stability. (Brinkley and Bernstein made their remarks on CNN.)

This can’t go on, but how will it end? Regardless of what comes next, I’m proud of my city for the stand it took this past weekend.

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Free speech took a back seat to public safety at Saturday’s demonstrations

It’s now clear why no one could hear the right-wing speakers on the Boston Common on Saturday. The police kept demonstrators 75 yards away, and the speakers didn’t have any amplification. I’m not sure whether that was a police decision or a result of their own poor planning. (And I doubt it would have made a difference.)

The police had a huge dilemma on their hands. Even though the vast majority of the 40,000 counter-protesters were peaceful, there could have been some real trouble from a few hotheads if they had been allowed any closer. There were only a few dozen right-wingers.

I’m not sure how this could have been handled differently. Someone suggested that a pool reporter should have been allowed in, and that certainly would have been better than nothing. It didn’t help that BPD Commissioner Bill Evans issued a statement in which he sounded glad that the speakers were not able to get their message out:

We had a job to do; we did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what, if they didn’t get in, that’s a good thing ’cause their message isn’t what we want to hear.

Let’s not kid ourselves. There was real potential for violence far beyond the skirmishes that actually took place. The Boston Police did a good job of protecting public safety. But free speech took a back seat on Saturday, and I imagine we’re going to be hearing more about that in the days to come.

Update: First Amendment Rob Bertsche has similar thoughts.

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What I saw at the ‘Fight Supremacy’ counter-demonstration

Getting ready to leave the Reggie Lewis Center and head down Tremont Street.

I did quite a bit of tweeting earlier today from the “Fight Supremacy” anti-racism demonstration, and here is a Storify I put together capturing what I hope are the most useful parts.

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My reporter’s toolkit for today’s demonstrations

I’m heading to Boston later this morning to report on the protests for my column at WGBH News. Here is my reporter’s toolkit: unofficial press pass, business cards, notebook and $40 cash for bail — the last recommended by First Amendment lawyer Rob Bertsche, whose firm, Prince Lobel, will be on call this weekend for any journalists who find themselves in legal trouble.

My plan is to accompany the “Fight Supremacy!” counterprotesters from the Reggie Lewis Center to the Boston Common, where the white-supremacist rally is supposed to take place. I’ll try to do some live posting on Twitter right here, though it’s likely the cellular networks will be overloaded.

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Frederick Clay’s ordeal underscores the hazards of excessive police secrecy

By Jeffrey J. Pyle

For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.

The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.

Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.

The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.

Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.

After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other  suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.

The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.

These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want.  (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)

Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.

The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.

The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.