First Amendment – Page 11

Federal judge rules that a headline calling someone a ‘spy’ can be protected opinion

Is it permissible to call someone an Iranian spy if the facts are somewhat more nuanced than that? Apparently the answer is yes — at least according to U.S. District Judge Allison Burroughs.

Burroughs recently dismissed a libel claim brought in Boston by Kaveh Afrasiabi against United Press International and Struan Stevenson, writing that an article written by Stevenson, whose headline referred to Afrasiabi as an “Iranian spy,” was a matter of clearly labeled opinion, which is protected by the First Amendment. I learned about the case from Adam Gaffin, who wrote about it at Universal Hub last Friday.

There are a lot of fascinating details in Burroughs’ opinion. Most of it is based on long-settled law that opinion is protected as long as there is some factual support for it, or if it cannot be proven true or false. Afrasiabi’s complaint was based on the headline, “Iranian spy arrested by FBI was wolf in sheep’s clothing.” Burroughs found that “wolf in sheep’s clothing” was pure opinion, whereas the reference to him as a spy was a matter of opinion grounded at least in part in the factual record as well as because the entire piece was opinion.

“Although the term ‘spy’ is arguably capable of being proved false, the phrase ‘wolf in sheep’s clothing’ plainly is not,” she wrote. “Given that the term ‘Iranian spy’ is followed by ‘a wolf in sheep’s clothing,’ the entire headline, read together as it must be, is clearly a statement of opinion.”

Moreover, Afrasiabi has been charged with failing to register with the U.S. government under the terms of the Foreign Agent Registration Act. Afrasiabi has asserted that he never engaged in espionage against the United States.

As Gaffin observes, the judge’s ruling also references a Boston Herald case involving the suicide of Brad Delp, lead singer of the band Boston, which found that you can’t go looking for nuance in headlines. Quoting from that decision, she wrote: “A newspaper need not choose the most delicate word available in constructing its headline; it is permitted some drama in grabbing its reader’s attention, so long as the headline remains a fair index of what is accurately reported below.”

Here is the heart of Judge Burroughs’ decision, which found that Stevenson laid out the facts, allowing readers to determine whether they agreed with the headline or not:

Because Mr. Stevenson accurately presented the facts surrounding Dr. Afrasiabi’s background, arrest, and criminal charges in the Article, neither he nor UPI can be held liable for defamation based on his opinion that those facts render Dr. Afrasiabi an “Iranian spy” and a “wolf in sheep’s clothing.” … Put slightly differently, because the Article permits the reader to form his or her own opinion about whether the facts presented make Dr. Afrasiabi a “spy” and/or “a wolf in sheep’s clothing,” the statement is not actionable.

Finally: What, may you ask, is UPI these days? Does it have anything to do with the UPI of the 20th century, which for decades was The Associated Press’ main rival? The answer is no, not really.

According to Wikipedia, which seems to have the most up-to-date information, UPI today is part of News World Communications, which in turn was founded by the Rev. Sun Myung Moon of the Unification Church. News World used to own The Washington Times as well, but that paper is now owned by a different Moon entity.

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Judge partly overturns Maryland’s ban on broadcasting official courtroom audio

Now here’s an interesting First Amendment dilemma. Judges in most states have broad discretion in whether to allow television cameras or audio recorders into their courtrooms. May the government also ban news organizations from broadcasting the official audio record of a criminal proceeding?

Under Maryland state law, the answer is yes: “The Maryland Code forbids anyone, including the media, from broadcasting official court recordings of state criminal court proceedings that were lawfully obtained from the court itself,” reported McKenna Oxenden in The Baltimore Sun.

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But now that law is tottering on the brink of being declared unconstitutional. As Oxenden and Michael Kunzelman of The Associated Press reported last week, a U.S. district court judge has ruled that NPR may use official audio as part of its podcast “Embedded.” An upcoming episode will focus on the trial of Jarrod Ramos, who killed five people at The Capital Gazette in Annapolis, Maryland, in 2018. Ramos was found criminally responsible earlier this year. The current proceedings involve his sentencing.

Judge Richard Barrett’s ruling pertains only to NPR’s request. But a challenge to the constitutionality of the law itself is under way as well.

In defending the law, the office of Maryland Attorney General Brian Frosh disingenuously wrote that the ban, intended to maintain the “fairness and integrity” of criminal cases, does not infringe on freedom of the press because news organizations are free to use transcripts of the recordings in any way they like:

The statute does not prohibit any person from describing, transcribing, or reenacting any portion of a criminal trial. It bans only methods of communication that depict participants’ images and voices from inside the courtroom.

Bennett was having nothing of it. As the AP noted, Bennett rejected that argument in an earlier ruling, writing that the law “constitutes a prior restraint on speech that is irreparable as a matter of law.”

With the Maryland law seemingly well on the way to being overturned, it’s time to re-examine why television and radio journalists are usually banned from using the tools of their jobs when covering criminal cases. The excuse is generally the same as that advanced by Frosh — that they can attend and take notes like everyone else. But the First Amendment should guarantee that they can report from the courtroom just as they do from any other location: with video and audio so the public can see and hear how justice is being administered.

Judge in Alexis Johnson case schools Pittsburgh P-G in the First Amendment

Clarification: The Post-Gazette will get another chance to make its First Amendment argument.

The story may be apocryphal, but it’s a good one. Some years ago a few independent weekly newspapers in the Boston area sued a daily paper, charging that the daily — which also owned a small chain of weeklies — was illegally selling ads in its weeklies at a loss in order to drive the independents out of business. The owner of the daily claimed his actions were protected by the First Amendment. As you might imagine, the judge in the case laughed him out of court.

Something similar just happened to the Pittsburgh Post-Gazette. Former reporter Alexis Johnson, who was banned from covering Black Lives Matter protests after her editors claimed that her innocuous Twitter joke about a Kenny Chesney concert compromised her objectivity, sued the paper in June 2020, claiming racial discrimination (Johnson is Black) and illegal retaliation. The Post-Gazette argued that its actions were protected by the First Amendment.

U.S. District Judge J. Nicholas Ranjan is having none of it. According to Ryan Deto of the Pittsburgh City Paper, Ranjan rejected the Post-Gazette’s bid to dismiss the case, ruling, “While the First Amendment provides a publisher absolute discretion to refrain from publishing content, this discretion does not extend to allow a publisher to make any and all discriminatory personnel decisions.” University of Pittsburgh law professor Jerry Dickinson told the City Paper that the ruling could help other journalists of color who are dealing with workplace discrimination:

It means the P-G can’t short-circuit accountability by hiding behind the First Amendment for protection from its discriminatory actions. There are clearly enough facts in dispute that affords the case to move forward. The backdrop to this case was the Black Lives Matter movement and racial justice protests after the murder of George Floyd. We don’t want the First Amendment weaponized against racial progress. That’s dangerous.

The Post-Gazette’s actions against Johnson sparked national coverage, leading to outrage in the newsroom and a decision by a supermarket chain to stop carrying the paper. Johnson herself left and is now a high-profile reporter for Vice News.

As I wrote at the time for GBH News, the story also shone a spotlight on the decline of the Post-Gazette under publisher John Block, whose family had owned the paper for many years but who was personally a Trumper who seemed peculiarly ill-suited to the job.

Just as the owner of that Boston-area newspaper learned many years ago, the First Amendment may be a powerful tool for guaranteeing freedom of the press — but it doesn’t magically protect business practices that would be illegal for anyone else.

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Regrets, Walsh has a few

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

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

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

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

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

Both White and Rose have denied any wrongdoing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previously published at GBH News.

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

For more than half a century, protections enacted by the U.S. Supreme Court have shielded the press by enabling journalists to hold the powerful to account without having to worry about frivolous libel suits. The 1964 case of New York Times v. Sullivan established the principle that a public official would have to prove a news organization acted with “actual malice” — meaning that the offending material was known to be false or was published with “reckless disregard for the truth.” That standard was later extended to public figures as well. The decision provided journalism with the armor it needed to report fearlessly, enabling stories such as the Pentagon Papers and Watergate.

It seemed impossible that this bulwark would fall when, during the 2016 presidential campaign, then-candidate Donald Trump promised to “open up libel laws” in order to make it easier for people to sue media outlets. And it seemed only slightly less impossible in early 2019, when Supreme Court Justice Clarence Thomas wrote an intemperate dissent arguing that Times v. Sullivan should be overturned in its entirety, returning libel law to the tender mercies of the states.

After all, the actual malice standard was enacted because the racist white power structure in the South had weaponized libel during the civil rights era as a way to intimidate the press. Surely Thomas’ fellow justices had no desire to return to those blighted days. Besides, a strong First Amendment appeared to be one of the few areas on which liberal and conservative judges agreed.

But weakening those protections began to seem more plausible several months ago when Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia praised Thomas — and joined his call to overturn Times v. Sullivan. Silberman threw a judicial tantrum, blasting what he viewed as liberal media bias and writing that “when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

Impossible. Then plausible. And, now, a glimmer of a potential coming reality: Earlier this month, Supreme Court Justice Neil Gorsuch joined Thomas in dissenting from a decision not to hear a case brought by the son of a former Albanian president against the author of a book who’d accused him of illegal gunrunning. Thomas’ opinion bristles with indignation and approvingly cites Silberman. Gorsuch, in turn, cites Thomas. But unlike Silberman and Thomas, Gorsuch’s opinion is all sweet reasonableness, discussing how much the media have changed since 1964 and asking, gosh darn it, why we shouldn’t acknowledge that social media, cable news and clickbait websites require a different approach to libel.

Arguing — correctly, I should note — that the actual malice standard allows media outlets to escape a libel judgment if they can prove they believed the defamatory falsehoods they published were true, Gorsuch writes: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy…. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’”

Gorsuch’s conclusion oozes good intentions. “I do not profess any sure answers,” he writes. “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”

Gorsuch’s opinion relies heavily on an academic paper titled “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan,” by David A. Logan, a professor at the Roger Williams University School of Law. Logan writes that actual malice has provided the media with “what amounts to an absolute immunity from damages actions for false statements,” which in turn has “facilitated a torrent of false information entering our public square.”

Logan’s examination of the data shows that libel judgments have plunged in the years since Times v. Sullivan, suggesting that the decision has created a nearly insurmountable obstacle to public officials and public figures who’ve been wronged. He suggests several possible remedies, such as narrowing the definition of a public figure or devising a system that would allow plaintiffs to “secure a judgment of falsehood in return for giving up a claim for damages.”

And he closes with the big one: getting rid of the actual malice standard altogether and replacing it with something easier to prove, such as “highly unreasonable conduct.”

Changes that result in fewer protections for the press make me queasy. But if the Supreme Court is serious about revisiting actual malice, then adopting something like a juiced-up negligence standard, as Logan proposes, wouldn’t necessarily be the worst outcome. Negligence is already the standard for private figures in most states, as laid out in the 1974 case of Gertz v. Robert Welch. It would certainly be better than overturning Times v. Sullivan altogether.

But remember: What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell. Let’s just hope the justices don’t do too much damage to the press’ ability to hold the powerful to account.

Muzzle follow-up

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

Looking back at 24 years of New England Muzzle Awards

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

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

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

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

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

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

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

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

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

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

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

Illustration by Meryl Brenner / GBH News

Previously published at GBH News.

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

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

Those censorious actions include police brutality against demonstrators in Boston and Worcester who were attempting to exercise their First Amendment rights to freedom of speech and assembly. Efforts aimed at banning the teaching of “divisive concepts” about race and gender in Rhode Island and New Hampshire. Ending a drug counseling program at a jail in Maine because the organization that runs it had expressed sympathy for Black Lives Matter. Grabbing hundreds of copies of a newspaper from newsstands and burning some of them, as racial justice demonstrators did in Burlington, Vermont.

Other prominent winners include former Boston Mayor Marty Walsh, who refused to comply with multiple public records requests about an internal investigation of former Boston police officer and union president Patrick Rose, who faces 33 charges linked to sexually abusing young children; retired Harvard Law School professor Alan Dershowitz, who hit CNN with a $300 million libel suit that seemed aimed more at intimidation than illumination; and Fox News host Tucker Carlson, who all but invited his fans to terrorize two freelance journalists in Maine by falsely claiming they planned to reveal the location of his home in that state.

The New England Muzzles are published around the Fourth of July every year to call attention to outrages against freedom of speech and of the press. They were launched in 1998 at the late, great Boston Phoenix, which ceased publication in 2013. This is the ninth year they have been hosted by GBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the now-defunct Thomas Jefferson Center for the Protection of Free Expression.

The envelopes, please. Continue reading “The 2021 New England Muzzle Awards: Spotlighting 10 who diminish free speech”

Ron DeSantis’ latest stunt would make Joe McCarthy proud

Joseph McCarthy. Painting via the National Portrait Gallery.

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

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

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

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

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

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

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

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