Category: First Amendment

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

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

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

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

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

And here’s Gaziano’s conclusion:

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

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

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

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

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

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

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

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

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

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michigan legislator files bill to register fact-checkers

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

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

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

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

There he goes again: Why DeSantis’ Fox News stunt may be unconstitutional

Florida Gov. Ron DeSantis’ decision to give Fox News an exclusive as he signed his state’s new voter-suppression law was a sleazy piece of political gamesmanship. But was it unconstitutional? Maybe. A 1974 court ruling established the principle that government officials may not ban members of the press from events that are customarily open to the media. I wrote about it a year ago in a case involving — yes — DeSantis.

What makes this unusual is that the law envisions an official who singles out a specific reporter or news outlet for exclusion. DeSantis’ stunt involves the granting of special privileges to one news outlet. That’s generally allowed, as with agreeing to an interview. But a bill-signing is the sort of public event that is almost always open to the press, so it’s possible that DeSantis may have stepped in it again. Anyway, here’s my earlier item.

Florida governor’s ban on reporter violates the First Amendment

March 30, 2020

Florida Gov. Ron DeSantis’ decision to bar a reporter for the Miami Herald and the Tampa Bay Times from a news conference that was otherwise open to the press was a flat-out violation of the First Amendment.

Although the question of whether public officials can ban specific journalists from media events has never been taken up by the Supreme Court, a 1974 federal district court ruling is generally regarded as good law. I wrote about it a few years ago when a similar situation arose in New Hampshire.

Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:

A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.

But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.

Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.

Salem mayor calls for the Legislature to be covered by the open meeting law

Salem Mayor Kim Driscoll. Photo (cc) 2020 by the office of Gov. Charlie Baker.

Well, isn’t this a lovely surprise on a Monday morning. Salem Mayor Kim Driscoll has written an op-ed piece for The Boston Globe calling for an end to the state Legislature’s exemption from the open meeting law — a law that requires virtually all city and town boards and many state commissions to conduct their business in public. It’s a bit too late for Sunshine Week, but we’ll take it. Driscoll writes:

If 351 cities and towns can adopt budgets, engage in policy debates, hire and evaluate staff, and create local laws — all while meeting the rightly rigorous standards of the Commonwealth’s Open Meeting Law — there is no valid reason why our state colleagues cannot do the same.

Driscoll also notes that Massachusetts is one of only 11 states whose legislature is exempt from open meeting laws.

Similarly, the Legislature and the courts are exempt from the state’s public records law, and a succession of governors, including Charlie Baker, have claimed that their immediate staff is exempt as well.

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Last fall, our Northeastern journalism students contacted all 257 candidates for House and Senate seats and asked them whether they would support ending that exemption. Sadly, only 71 responded despite repeated emails and phone calls; but of those who did respond, 72% said they favored applying the public records law to the Legislature.

As with the open meeting law, Massachusetts is an outlier: it is one of only four states whose public records laws do not cover legislative proceedings.

The central argument Driscoll offers is unassailable. If cities, towns and state agencies can comply with the open meeting and public records laws, so, too, can the Legislature. It’s long past time to drag the proceedings of the Great and General Court out into the sunlight.

Making sense of Judge Silberman’s diatribe against libel protections for the press

Judge Laurence Silberman. Painting by Peter Even Egeli.

We are probably a long way from having to worry about the libel protections the press has enjoyed for the past half-century. But Judge Laurence Silberman’s attack on the landmark decision New York Times v. Sullivan is the second by a prominent conservative in two years — the first coming from Supreme Court Justice Clarence Thomas.

Josh Gerstein reported in Politico on Friday that Silberman, a senior judge who sits on the U.S. Court of Appeals for the District of Columbia, wrote in a dissent that the “actual malice” standard set forth in the Times decision was a “policy-driven” result with no basis in the First Amendment.

“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” Silberman wrote, praising Thomas’ dissent in a 2019 case in which urged his fellow justices to return libel law to state jurisdiction.

I wrote about Thomas’ dissent for GBH News, so I don’t want to repeat everything here. But the Supreme Court hit upon actual malice as a way to stop the racist white power structure in the South from weaponizing libel law — that is, filing bogus libel cases against the press based on inconsequential errors as a way of intimidating Northern media outlets during the civil-rights era.

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Thomas and Silberman both claim there is something perverse about actual malice, but in fact it is a logical evolution of how libel law developed over the centuries. Originally, the only element to libel was defamation. The truth of a published item was not only irrelevant, but it was thought that “the great the truth, the greater the libel,” since truthful defamatory statements can be more harmful to someone’s reputation.

That was the basis of “seditious libel,” which was nothing more than criticism of the government. That notion began to fade away following the 1735 trial of John Peter Zenger, a printer whose New York newspaper had defamed the royal governor, William Cosby. A jury acquitted Zenger after his lawyer, Andrew Hamilton, persuaded its members that truth should be a defense in a libel case. It was an early example of jury nullification, as Hamilton’s argument had no basis in the law of that day. Gradually, though, truth came to be seen as perhaps the ultimate defense in a libel case.

Before Times v. Sullivan, libel was based on a two-legged stool — defamation and falsity. The decision added a third leg — fault. From that point on, public officials filing a libel claim would have to prove that the defamatory falsehoods published about them had been made with actual malice — that is, with the knowledge that they were false, or with “reckless disregard for the truth,” which later came to be defined as strongly suspecting that the statements were false.

There’s no question that this presents a high barrier for public officials. But it also gave the press the protection it needed to engage in high-stakes investigative reporting. As the late Anthony Lewis pointed out in his book “Freedom for the Thought That We Hate,” reporting on the Pentagon Papers and Watergate would have been much more difficult without Times v. Sullivan.

In the years following Times v. Sullivan, the standard was refined so that public figures would also have to prove actual malice; even private figures would at least have to show that the press had acted negligently.

Silberman’s dissent, by the way, is really something, drenched with grievances against the so-called liberal media. He writes:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today’s very different challenges, I doubt the Court would invent the same rule

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon…. The increased power of the press is so dangerous today because we are very close to one-party control of these institutions.

He goes on to call The New York Times and The Washington Post “virtually Democratic broadsheets,” and lumps in most of the rest of the press as well. (The Boston Globe get a shoutout.) He cites Fox News, The Wall Street Journal’s editorial page and the New York Post as exceptions, but adds “there are serious efforts to muzzle Fox News.”

I do not know what he’s talking about, unless he regards the mutterings of a small handful of Democratic members of Congress and media activists as “serious.” He also lambastes social media for cracking down on the right, disregarding the reality that those efforts have been aimed at eliminating falsehoods, not conservative opinions.

And as Washington Post media critic Erik Wemple pointed out, the conservative outlets cited as exceptions by Silberman surely are in need of actual-malice protections as much as others. (Fox and the New York Post more than most, I’d imagine.)

Silberman ends with this broadside:

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And 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.

Fortunately, most conservative judges on the Supreme Court and elsewhere have taken at least as expansive a few of the First Amendment as their liberal colleagues. Thomas and Silberman would appear to be outliers. But freedom of the press is never guaranteed. This bears watching to see whether what is now a tiny flame somehow blows up into a conflagration.

The Trump campaign lost its libel suit because it really did collude with Russia

Michael Flynn. Photo (cc) 2016 by Gage Skidmore.

A New York state judge Tuesday tossed a libel suit filed by Donald Trump’s campaign against The New York Times. The suit claimed that a 2019 column by former executive editor Max Frankel was false and defamatory because Frankel wrote that the 2016 Trump campaign had colluded with Russian interests.

Two-thirds of Judge James d’Auguste’s ruling is not especially interesting. He ruled that the campaign lacked standing to bring such a suit, and that Trump would be unable to prove Frankel knew or strongly suspected that what he was writing was false — the “actual malice” standard that pertains to public officials and public figures.

So that leaves us with the third leg of d’Auguste’s decision — that Frankel was merely expressing his opinion, which is protected by the First Amendment. The standard was set in a U.S. Supreme Court case called Milkovich v. Lorain Journal Co., in which Chief Justice William Rehnquist ruled that labeling a piece of writing as “opinion” provides no protection if that piece contains assertions of fact that could be proven true or false.

The way Rehnquist explains it is that to say “In my opinion Mayor Jones is a liar” would be unprotected speech (that is, if Jones could prove he’s not a liar, he might be able to bring a successful libel suit) whereas “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin” would be considered pure opinion and thus beyond the reach of a libel suit.

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So what did Max Frankel do? If you read his commentary, you’ll see he looked at a number of public actions and statements by Trump and people close to him to show that they were toadying to Russian interests, and that not only did the Russians expect something in return, but that Trump and his allies moved in that direction both during and after the 2016 election. We all know this. We all watched it unfold in real time. (It’s important to note in this context that “collusion” is not a legal term anymore than “toadying” is. In other words, labeling such behavior as “collusion” is protected opinion as long as the underlying facts are accurately stated.)

Among other things, Frankel cites the infamous Trump Tower meeting as well as incoming national security adviser Michael Flynn’s lying to the FBI about his discussion with the Russian ambassador before the 2017 inauguration about the possible lifting of sanctions. Those actions led to criminal charges against Flynn, to which he pleaded guilty twice before Trump, as president, pardoned him in the final days of his administration. Frankel writes:

Candidate Trump made no secret of his intention to forge a warm relationship with the Kremlin. But pledges of sanctions relief and other specific moves while not yet in office were unseemly at best and clearly offensive to the American convention that we have only one president at a time. Mr. Flynn especially had to lie because though already in transition to power he was directly undermining Mr. Obama’s still active and punitive diplomacy against Mr. Putin.

Frankel didn’t libel Trump, not just because of the technicalities of defamation law, but because he wrote the truth. Trump might as well sue Robert Mueller while he’s at it.

Reporter arrested at protest says it’s important for journalists to bear witness

USA Today has an account of Des Moines Register reporter Andrea Sahouri’s testimony at her trial stemming from her arrest at a Black Lives Matter protest last summer. (The Register and USA Today are both Gannett papers.)

“It’s important for journalists to be on the scene and document what’s happening,” Sahouri said as part of her testimony. “Protests erupted not just across the country but all over the world. I felt like I was playing a role in that. I know we are a small city, but I felt like I was playing a role in that.”

Here, I think, is the key:

The judge has also not ruled on a motion filed by Sahouri’s attorney during the trial for a directed verdict to decide the case in Sahouri and Robnett’s favor. [Sahouri and her then-boyfriend, Spenser Robnett, were both pepper-sprayed and arrested.]

This case should be thrown out as quickly as possible — not just to ensure that justice is done and the First Amendment is protected, but to send a message to the police and the prosecutors who are pursuing this dubious case.

Earlier:

Louisiana reporter sued for filing a public records request wins her case

A Louisiana reporter who was sued for filing a public records request has won what appears to be a total vindication.

Andrea Gallo, a reporter for The Advocate and The Times-Picayune of New Orleans, will received the documents she was seeking under the ruling by Judge Tim Kelley. And the state attorney general, Jeff Landry, will have to pay $5,625 to cover Gallo’s court costs. But don’t gloat too much — the taxpayers will foot that bill.

The records Gallo sought are related to a sexual harassment investigation of one of Landry’s top aides.

Earlier:

Don’t censor right-wing disinformation. Just stop making us pay for it.

Photo (cc) 2007 by Jason Eppink

Two Democratic members of Congress are asking giant cable providers like Verizon and Comcast some uncomfortable questions about their business dealings with three right-wing purveyors of toxic misinformation and disinformation — Fox News, Newsmax and OANN.

Among other things, according to Erik Wemple of The Washington Post, Reps. Anna Eshoo and Jerry McNerney want to know what “moral and ethical principles” are involved in carrying the channels and whether they intend to keep carrying them after their current contracts expire. This is not a good road to take. As Wemple writes:

The insertion of Congress into the contractual relationships of video providers with particular news/propaganda outlets, however, is frightening. Asking questions is a protected activity, of course — one that lawmakers use all the time. Yet these questions feel a lot like coercion by government officials, an incursion into the cultural promise of the First Amendment. Eshoo and McNerney’s letter hints that, unless the carriers proactively justify keeping OAN, Newsmax, Fox News and the like, the signatories would like to see them de-platformed right away.

The very real problem is that Fox News and its smaller competitors are unique in the extent to which they spout falsehoods and outright lies about everything from the COVID-19 pandemic to the outcome of the 2020 election. But what can we do about it without posing a threat to the First Amendment?

Liberal activists have pressured advertisers from time to time, which is well within their own free-speech rights. But Fox, in particular, is all but immune from such pressure because most of its money comes from cable carriage fees. As Angelo Carusone, president and CEO of the liberal media-watch organization Media Matters for America, recently told the public radio program “On the Media”:

They can have zero commercials and still have a 90% profit margin because they are the second most expensive channel on everybody’s cable box, and Fox is in the process right now of renegotiating 40 to 50% of all of their contracts.

A far more promising avenue is one suggested by the media-reform organization Free Press. Contained within its daily missives demanding that Congress take action against Fox, Newsmax and OANN for spewing “hate and disinformation into homes and businesses across the country” is a proposed solution that we all ought to support: mandating  à la carte cable so that consumers would only have to pay for the channels they want. (Bye bye, ESPN!)

The problem with these right-wing purveyors of lies isn’t that they exist. It’s that, unless we’re willing to cut the cable cord, we’re forced to pay for them whether we watch them or not, whether we’re appalled by them or not. It’s time to bring that to an end.

So yes, there’s a way to do something about cable hate without raising constitutional issues. Reps. Eshoo and McNerney should take note.

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