For those keeping track of the various ways by which President Donald Trump is trampling on the Constitution, move this to the top of your list: his former lawyer Michael Cohen was sent back to prison earlier this month to prevent him from writing a tell-all book about Trump.
Cohen, serving a federal sentence related to various corrupt acts on behalf of the president, was allowed to go home when the COVID-19 pandemic hit. But he was locked up again after he refused to promise not to publish his Trump book, “Disloyal,” before the November election. Cohen was sprung for a second time by U.S. District Judge Alvin Hellerstein, who ruled last week that federal authorities had violated Cohen’s First Amendment rights.
“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, according to The Associated Press, adding: “Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose?”
The Justice Department’s short-lived effort to silence Cohen by imprisoning him was egregious even by the thuggish standards of the Trump era — but it was also just the third recent move by the president and his minions to prevent critics from publishing books about him. The others:
• Former national security adviser John Bolton’s book, “The Room Where It Happened,” was held up for months while undergoing review for the ostensible purpose of ensuring that Bolton did not reveal any classified information. That, at least, was a legitimate reason. But Bolton and his publisher, Simon & Schuster, ultimately chose to defy the White House after it became clear that the process was being drawn out for reasons of politics rather than protocol.
In allowing the book to proceed, federal judge Royce Lamberth wrote that Bolton may very well have been improperly revealing secrets — but that the First Amendment remedy for all but the most dangerous breaches of national security is to punish the perpetrator after publication, not to prevent publication ahead of time. According to NPR, Lamberth wrote that Bolton had “gambled with the national security of the United States,” but that “the government has failed to establish that an injunction will prevent irreparable harm.”
• Trump, through his brother Robert, sought to prevent the release of his niece Mary L. Trump’s devastating book about the president, “Too Much and Never Enough,” by claiming that she was violating a nondisclosure agreement she had signed many years earlier.
Although a lower-court judge granted Robert Trump a temporary restraining order, that order was overturned by Judge Hal Greenwald of the Supreme Court of New York. In a nice turn of phrase, The Washington Post reported, Greenwald wrote the Constitution “trumps contracts.”
Though the circumstances of Cohen’s, Bolton’s and Mary Trump’s books couldn’t be more different, there is a common thread: the First Amendment demands that publication not be prohibited, and that if the authors are to be subjected to any legal penalties, those penalties must come later.
The principle that prior restraint is the worst and most indefensible of assaults on free expression goes all the way back to the English poet John Milton, who in his 1644 tract “Areopagitica” argued against the requirement that printers obtain licenses on the grounds that everyone should be free to print what they wished without government interference.
In stirring language, Milton wrote that “though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”
Milton also anticipated modern First Amendment law by arguing in favor of unimpeded publication first, punishment (if warranted) after — though his ideas about what constituted proper punishment were suffused with a distinct 17th-century sensibility, writing that “the fire and the executioner will be the timeliest and the most effectuall remedy.”
In the 20th century, the U.S. Supreme Court ruled in two landmark cases that, with very few exceptions, punishment should come only after publication.
In Near v. Minnesota (1931), the court ruled that prior restraint could be invoked only in cases involving a serious violation of national security, obscenity or incitement to violence. Thus was a Minneapolis-based scandal sheet allowed to resume publication even though every previous issue had contained outrageous libels.
In New York Times Co. v. United States (1971), the court upheld the Near precedent and ruled that publication of the Pentagon Papers could resume because the national-security implications were not serious enough to warrant censorship — although a majority suggested that they might be serious to justify post-publication prosecution, as my friend and occasional collaborator Harvey Silverglate has shown.
In Trumpworld, the revelations of Michael Cohen, John Bolton and Mary Trump are so horrifying that they justify being repressed even more than the Pentagon Papers, the government’s secret history of the Vietnam War. Yet as President Richard Nixon argued at the time, the Pentagon Papers really did undermine the war effort. Today’s revelations have resulted only in embarrassment to the president.
And it continues. Last week The New York Times reported that Immigration and Customs Enforcement was blocking the release of a Netflix documentary that depicts the agency’s abuse and mockery of immigrants. The filmmakers, Shaul Schwarz and Christina Clusiau, said they’d been told that objections to their work extended “all the way to the top.”
Unfortunately, Schwarz and Clusiau had signed an agreement granting approval rights to ICE. And though that agreement supposedly included “strong protections for their journalistic independence,” as the Times put it, it’s now being wielded as yet one more way to protect Trump from scrutiny and criticism.
There is a school of thought that Trump’s ranting about the media — calling them “Enemies of the People,” threatening to loosen libel protections and the like — is little more than bluster. His two Supreme Court justices, regardless of what else you might say about them, appear to be as dedicated to protecting the First Amendment as their colleagues. And Trump rarely follows through on his threats.
But there is a connection between his rhetoric and his actions: anyone who speaks against him must be silenced and punished — even jailed and put at risk of death, as with Michael Cohen.
With federal troops cracking down on mostly nonviolent protesters against the wishes of governors and mayors, the scent of authoritarianism is in the air. Will we pay attention? Or will we simply move on to the next outrage, as we have so many times in the past three and a half years?
Following up on my WGBH News column about the legislative exemption to the state’s public records law, I want to call your attention to this excellent article (which predated mine) in CommonWealth Magazine by Colman Herman.
Herman took a look at the (slightly) improved public records law more than three years after it took effect — and what he found demonstrates the need to go back and reform the law root and branch. Among the lowlights:
Provisions aimed at toughening the penalties for compliance have been ineffective. Among the most egregious offenders are the State Police and the Boston Police, which, he writes, “take extraordinary measures to withhold documents in their entirety from public view.”
A provision that was supposed to make it easier for members of the press and the public to access public records without having to pay high fees has fallen short of that goal. Herman reports that when he asked for copies of disciplinary actions taken against massage therapists over a five-year period, “officials demanded $2,000 before it would turn over any records.”
Agencies regularly cite the multiple exemptions built into the law in order to deny access to such obviously public documents as MBTA General Manager Steve Poftak’s contract — which was turned over, Herman writes, but only after a considerable delay.
Turning enforcement over to Attorney General Maura Healey has had mixed results, with the attorney general’s office in some cases failing to uphold orders issued by the secretary of state’s office.
“The adages are many — information is the currency of democracy, sunlight is the best disinfectant, democracy depends on an informed citizenry,” Herman writes. “But in Massachusetts, these beliefs often still get shunted aside when it comes to accessing public records even under the new Public Records Law.”
Herman’s article is further evidence that open government in Massachusetts is more myth than reality.
It’s long past time to close a gaping loophole in the Massachusetts public records law: an exemption that allows the Legislature to conduct much of its business in secret. State agencies as well as cities and towns are required to turn over all manner of documents when members of the press and the public ask them to do so. Our elected lawmakers, though, operate under the cover of darkness.
With legislative business wrapping up during the next few weeks, it’s too late to expect anything to happen this year. But Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said he expects bills aimed at rolling back at least part of the exemption to be filed next January. Unfortunately, he also expects those bills to die the same quick death that similar proposals have in previous years.
“The Legislature has no interest in changing the status quo,” Ambrogi said in an email. Justin Silverman, executive director of the New England First Amendment Coalition, added he was “fairly certain there is no appetite” on Beacon Hill for any serious effort at reform.
Spokespersons for the Legislature’s Democratic leaders, House Speaker Robert DeLeo and Senate President Karen Spilka, declined to comment.
What prompted this column was a tweet. Two weeks ago, WGBH News published the annual New England Muzzle Awards, which spotlight outrages against the First Amendment from across the region. Anthony Amore, a security expert who was the 2018 Republican candidate for secretary of state, posted on Twitter: “Somehow the Massachusetts Legislature and Robert DeLeo escaped notice despite the most glaring muzzle of them all, exempting themselves from public records requests.”
Sadly, the exemption Amore was complaining about is hardly a shocker given the sorry state of open government in Massachusetts. According to a 2018 survey by the nonprofit investigative news project MuckRock, Massachusetts is just one of four states that do not subject their legislatures to public records laws. The others: Iowa, Minnesota and Oklahoma.
“In our state’s constitution, it says that the Legislature should be ‘at all times accountable to’ the people,” Mary Connaughton of the Pioneer Institute told MuckRock. “How can they be accountable if they are hiding behind closed doors or shielding their records from the people?”
MuckRock also pointed out that the four outliers are merely following the lead of Congress, which is exempt from the federal Freedom of Information Act. But that’s hardly an excuse. Let’s not forget that, in 2015, the Center for Public Integrity awarded Massachusetts an “F” for its miserable record of failing to provide public access to information.
The Legislature and Gov. Charlie Baker did approve an upgrade to the public records law in 2016. But though some progress was made in terms of fees and enforcement provisions, the loopholes remain. Indeed, not only is the Legislature exempt, but so is the judiciary. And a string of governors, including Baker, have claimed that they and their immediate staff also need not comply.
As Boston Globe investigative reporter Todd Wallack noted on Twitter earlier this week: “Massachusetts remains the only state where the courts, Legislature, and governor’s office all claim to be completely exempt from public records laws.”
Massachusetts remains the only state where the courts, Legislature, and governor's office all claim to be completely exempt from public records laws. https://t.co/ZbkKvQrEuo
Ambrogi said that, during negotiations over the 2016 bill, it was made clear to reform advocates that their efforts would be derailed if they targeted the legislative and gubernatorial exemptions. The bill did create a special legislators-only commission to study further changes — but that effort, according to Ambrogi, has barely gotten off the ground.
In testimony before the commission nearly two years ago, Ambrogi said, a coalition of advocates called for removing the exemption for the governor and for modifying the exemptions for the Legislature and the courts. He emphasized that the advocates have not asked that the legislative exemption be repealed in its entirety. Rather, he said, “we proposed subjecting certain legislative records to the public records law, such as financial reports, bills and resolutions, journals, certain internal memoranda, internal manuals and policies, meeting minutes, and more.”
In a recent point-counterpoint feature in The Boston Globe, Lawrence Friedman, a professor at the New England School of Law, defended the legislative exemption. “It is not difficult to imagine state representatives and senators censoring themselves out of concern that their words might be taken out of context,” Friedman wrote. “Perspectives about proposed laws and their implications could go unshared and, therefore, unconsidered.”
Yet 46 state legislatures somehow manage to conduct business without such secrecy provisions. As Friedman’s sparring partner, Justin Silverman, argued, “These types of records are used by community watchdogs, journalists, and concerned citizens throughout the country to keep their legislators accountable.” Silverman added that with the COVID-19 pandemic reducing access to government officials, being able to obtain records is more important than ever.
If state agencies, city councils, school committees and select boards can comply with the law, then so, too, can our legislators — and our governor and our court system as well. The law already contains a number of common-sense exceptions for such matters as protecting the secrecy of contract negotiations and, when warranted, the privacy of government employees.
There are a number of clichés you could invoke here — sunshine is the best disinfectant, the government works for us, the public’s business should be conducted in public, and the like. The bottom line, though, is that democratic self-government is impossible if our elected officials are shielded from having to tell us what they are saying and doing on our behalf.
The moment has come to bring this outrage to an end.
The Mystic Valley Regional Charter School is back in the news for discriminatory behavior — this time for insensitive comments by a former trustee and flat-out racist remarks and disciplinary practices. The Boston Globe reports.
Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.
According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.
This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.
By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).
At a moment of national crisis over racism and police brutality, it is depressingly apt that our lead New England Muzzle Award this year concerns an African American teacher in Milton, Massachusetts, who was briefly placed on leave and investigated for telling her sixth-grade poetry students that some police officers are racist.
School officials in Milton quickly backtracked, and the teacher, Zakia Jarrett, received a considerable amount of public support. Nevertheless, it’s sad and telling that the school administration’s first impulse was to punish the messenger rather than focus on the uncomfortable truth of her message.
Other Muzzle Award winners this year include a judge who refused a prosecutor’s request that he drop minor charges against nonviolent protesters (for good measure, he also briefly jailed a defense lawyer for reading the law to him); the police department in Portland, Maine, whose officers made an intimidating visit to a critic’s home under the guise of what appear to be trumped-up vandalism charges; and a town official in Exeter, Rhode Island, who shepherded through an ordinance requiring that people attending public meetings act with “decorum.”
Needless to say, the 2020 Muzzle Awards come at a time of unprecedented crisis, as the country struggles with the COVID-19 pandemic, economic collapse and a long-overdue coming to terms with the legacy of racism.
New England was spared the worst of those excesses. Still, especially in the early days of the demonstrations, heavy-handed police tactics in Boston and elsewhere sometimes overshadowed the message that the protesters were trying to convey. Suffolk County District Attorney Rachael Rollins told The Boston Globe last week that she is investigating police conduct at those protests.
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 eighth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
The envelopes, please.
Milton (Mass.) Public Schools
A Black teacher is targeted for speaking the uncomfortable truth.
Perhaps a Muzzle Award should go to the anonymous parent or student who recorded Zakia Jarrett last month as she was leading a remote sixth-grade poetry lesson and said that Black people were “being killed by racist white people … which many of the cops are, as well.” Whoever passed along that clip to Milton school officials sent an ominous warning in this new era of education by Zoom and Google: Be careful what you say, because you’re being watched.
Instead, though, the Muzzle goes to the Milton Public Schools. Their sole response should have been to remind everyone that recording teachers and making the clips public was a violation of school policy. Instead, according to The Boston Globe, Jarrett’s principal at the Pierce Middle School, William Fish, placed Jarrett on paid administrative leave while school officials investigated, sending a chilling message to the entire town.
The action affecting Jarrett was reversed later that day. But a considerable amount of damage had already been done. About 400 parents reportedly signed a letter in support of Jarrett, who is Black, and called on the school system to do a better job of teaching students about race and racism.
School officials quickly backtracked from their initial tough stance.
“At no point was the teacher suspended nor was any disciplinary action taken. The leave was rescinded after a few hours,” according to a statement posted on the school system’s website. The statement added that Schools Superintendent Mary Gormley “met with and apologized to the teacher and followed up with a written apology.”
But the Milton Educators Association, as the local teachers’ union is known, had a decidedly different perspective. In a statement published in the Milton Times, the union said that “nearly an entire week went by before the district responded to this situation in a way that conveyed how its actions let down all of the students and educators. The district’s message still fell short of what the MEA believed would have been an acceptable apology that acknowledged the full impact of this incident.”
What’s sad is that school officials fell back upon an unthinking bureaucratic response at the first sign of trouble. They should have been able to see how this would play out as soon as they received that 13-second clip. Not only could they have avoided a lot of trouble, but they missed a chance to do the right thing.
On June 19, Juneteenth, Milton educators and activists held a rally and march for racial justice. It was a chance for everyone to reflect and to take steps to ensure that nothing like it would happen again.
Despite that support, Jarrett told the Globe she hadn’t decided whether to stay in Milton.
“The word ‘racism’ triggers a lot of negative feelings,” she was quoted as saying. “The idea that people may hold racist beliefs makes them feel bad about themselves. But all people have biases and prejudices. And until we talk about them, we can’t root them out.”
Mass. Gov. Charlie Baker
He seeks to end nearly 380 years of access to vital records.
Since 1641, Massachusetts has made death certificates, marriage notices and birth records freely available to anyone who requests them. That could change, though, under an obscure proposal included as an outside section of the budget earlier this year, according to The Boston Globe. The proposal would hide such records from public view for what would amount to a lifetime.
If approved, the measure would be a step backwards in a state already notorious for limited access to public records. The Muzzle goes to Gov. Charlie Baker, who may be under the impression that he’s enhancing privacy protections, but who in reality would be cutting off a vital source of information for journalists and researchers.
Access to such records advances the public interest. For example, WGBH News reporter Jenifer McKim tweeted, “As MA governor works to make birth, death records secret, thinking of the stories I’ve written and produced with the help of these key, currently public, documents,” including suicides at colleges and universities.
As MA governor works to make birth, death records secret, thinking of the stories I've written and produced with the help of these key, currently public, documents: Stories looking at suicide deaths at local colleges and universities: https://t.co/GOzUJ7tNkC.
The genealogical community was angered as well. In an interview with the Chelsea Record, Ryan Woods, executive vice president of the New England and Genealogical Society, said, “Unequivocally it was a surprise to us. There had not been any public discussion about this until it appeared in the budget.”
The Massachusetts Genealogical Council said the measure would make health researchers’ jobs harder and could make it more difficult for women who need to document breast cancer within their families so that they may qualify for genetic testing. The council added: “This is a time when genealogists from throughout the world should step up and be heard.”
By including the proposal in his budget rather than filing it as a separate piece of legislation, Baker has made it more difficult to defeat, as legislators won’t be able to vote against it without also opposing spending measures that they might support.
The governor and the legislative leadership should delete this ill-considered proposal before it is ever put to a vote.
Judge Richard Sinnott
The son of Boston’s last official city censor keeps the tradition alive.
For courtroom heavy-handedness above and beyond the norm, it’s hard to beat Muzzle winner Richard Sinnott, a judge in the Boston Municipal Court.
Last September, The Boston Globe reported that Suffolk County District Attorney Rachael Rollins was seeking to drop charges against a group of nonviolent counter-protesters who’d been arrested on minor charges at a so-called Straight Pride demonstration. Sinnott refused.
Next, he ordered one of the defense lawyers, Susan Church, removed and locked up because she had the temerity to read from case law in order to argue that Sinnott had no right to reject Rollins’ recommendation. She was released about two hours later. “All I was trying to do is to read the law to the court, and I was summarily arrested, handcuffed, brought down to the holding cell, held there for hours,” Church told WGBH News.
The lenient treatment that Rollins sought was not indiscriminate, as she asked for more-serious charges to move forward against another group of protesters accused of violence.
“Make no mistake: some people were appropriately arraigned and will be held accountable for actions that put the safety of the public and law enforcement at risk,” Rollins said in a statement reported by Universal Hub. “For those people now tangled in the criminal justice system for exercising their right to free speech — many of whom had no prior criminal record — I will use the legal process to remedy the judge’s overstepping of his role.”
The standoff was resolved quickly. Several days later, Supreme Judicial Court Justice Frank Gaziano ruled that Judge Sinnott had no authority to stop Rollins from dropping the charges, according to MassLive.
Sinnott comes by his Muzzle-worthy ways naturally. His father, also named Richard Sinnott, was at one time the city censor, in charge of banning risqué entertainment such as strip shows and overly salacious Broadway plays. The New York Times called him “the last municipal official empowered to ban wickedness in Boston.”
Good thing that the younger Sinnott’s bid to keep the “Banned in Boston” flame burning ended in failure.
U.S. Customs and Border Protection
From their perch in northern Maine, they spy on Canadian mail.
What could be more sacrosanct than your mail? With the exception of prison inmates and targets of criminal investigations, people have a right to receive packages and read correspondence free from the prying eyes of the government.
Unless, that is, you live on Campobello Island, New Brunswick. Except for the summer months, when a ferry is in service, mail is delivered to the Canadian outpost over a bridge from Lubec, Maine — giving our Muzzle winner, U.S. Customs and Border Protection, entrée to tear it open and inspect it. Residents know their mail has been pawed over when it arrives resealed with green tape.
To be clear, we’re talking about internal Canadian mail, originating in Canada and sent to a Canadian village. The only reason it’s delivered through the United States is because of an accident of geography.
This outrageous situation drew press coverage late last year and early this year from the Canadian Broadcasting Corp., the BBC, The Washington Post, The Boston Globe and other media outlets. As Dale Calder, a retired Canadian government employee, told the Globe, “It’s an invasion of our privacy. There’s personal correspondence in there, people’s health records, and financial records. What are they doing with it once they open it?”
In a statement to CBC Radio, U.S. Customs officials said they “possess broad search authority to ensure the safety and admissibility of all goods entering the United States.”
Although U.S. officials wouldn’t confirm it, residents believe the reason for this snooping is that old demon weed. Marijuana is legal in Canada and Maine, but it remains illegal to transport it over the U.S. border.
“I don’t like American bullying. This kind of stuff bothers me,” an island resident named Steve Hatch, who holds both Canadian and American citizenship, told the CBC. “You should have an expectation of privacy with the mail, and we don’t here on the island.”
Chris Sevier
An out-of-state anti-LGBTQ activist bamboozles Rhode Island legislators.
To be fair, the bill that five Rhode Island state legislators introduced in March was aimed at addressing an unethical journalistic practice: reporting that a public official is under investigation but then failing to follow up. Sometimes accusations are set aside and the target is cleared of wrongdoing. The media should report that, as well.
Mandating a follow-up by law, however, is a clear abridgement of the First Amendment. That is why we are presenting a Muzzle Award to Chris Sevier, an anti-LGBTQ activist from Tennessee who achieved minor celebrity status some years ago for attempting to marry his laptop computer, according to the nonprofit news organization Mississippi Today.
Sevier is the leader of a nebulous organization called Stop Guilt by Accusation, which has pushed legislation in a number of states that would require news organizations to report the outcome of investigations into public officials accused of illegal or unethical conduct. “The freedom of the press is not absolute,” Sevier told Mississippi Today.
The Rhode Island legislators withdrew the bill and conceded it went too far, according to WPRI. James Bessette, president of the Rhode Island Press Association and an editor at Providence Business News, told the station, “The fact that this bill — which would be damaging beyond any comprehension — was even introduced is both laughable and frightening.”
A coda: Last January, a similar bill was introduced in the New Hampshire legislature. According to the New England First Amendment Coalition, the legislation would have imposed liability on any news outlet that reported on criminal charges and then later failed to report that the person had been acquitted or that the charges had been dismissed.
The bill quickly died in committee.
Sevier’s group identifies New Hampshire as one of the states where it is pushing his legislation. But state Rep. Jack Flanagan, R-Brookline, the sponsor of the New Hampshire bill, said in an interview with WGBH News that he had never heard of Sevier, and that the idea was his alone.
“I received a number of concerns from people who had been arrested, became public and were found not guilty, dismissed or dropped,” Flanagan said by email, adding: “My issue was that we weren’t telling what to write, but to write the whole story.”
Flanagan wins a Dishonorable Mention for his attempt to transform a reasonable observation about media ethics into an unconstitutional law.
Andrea Harrington
The Berkshire district attorney’s public records refusal prompts a resignation.
Public records violations are so common that they often don’t get the attention they deserve. Yet the principle that government should be transparent is an important one. If we don’t know what our representatives are up to, then the idea that we live in a self-governing democracy is meaningless. Unfortunately, the Massachusetts public records law is so weak that officials violate it with impunity — even though the law was strengthened slightly several years ago.
Some incidents, though, are so egregious that they warrant special mention — which is how Berkshire County District Attorney Andrea Harrington earned herself a Muzzle.
Last December, The Berkshire Eagle filed a public records request about a student at Bard College at Simon’s Rock who said she’d been racially attacked. Following an investigation, her claim was found to have been a hoax. Harrington’s office declined to provide the records.
What happened next was truly startling. Harrington’s public records officer, Jeanne Kempthorne, resigned and blew the whistle on the DA, telling the Eagle, “It was the straw that broke the camel’s back. My concern is that what she [Harrington] did was not in the public’s interest; it was in her interest. This isn’t a private company, and it’s not her campaign. There are bigger considerations — are we actually going to fulfill our public duties?” For good measure, Kempthrone gave the Eagle redacted copies of the records it had sought.
Harrington’s office denied that anything untoward had taken place. But the law requires law enforcement agencies to release records once an investigation has concluded, as was the case with the Bard incident.
“When officials abuse the investigatory exemption of the public records law, they prevent us from learning if justice is being served in our communities,” said Justin Silverman, executive director of the New England First Amendment Coalition, in an interview with the Eagle.
Finally, we are awarding a Dishonorable Mention to the Massachusetts State Police, also a 2019 Muzzle winner, which was sued by The Boston Globe in February of this year over the agency’s failure to produce documents related to the paper’s reporting on an investigation into overtime fraud and related matters.
Jeffrey Shedd
A high school principal in Maine shuts down discussion about sexual assault.
Aela Mansmann wanted to call attention to sexual harassment and assault at Cape Elizabeth High School in Maine, where she was a sophomore. So last September, she posted a note in the bathroom that read, “There’s a rapist in our school and you know who it is.” Several other girls began posting similar notes.
But when a male student complained that he was feeling targeted (an interesting reaction, given that no one was named in the notes), the school decided to act — not against sexual assault, but against whoever had posted the notes. An investigation of several weeks ensued. And the principal, Jeffrey Shedd, has earned a Muzzle Award for suspending Mansmann and two other girls for three days, writing to parents that the students had made a “bad choice” that “hurt” others, according to News Center Maine.
“I honestly feel very ashamed that my school took this action,” Mansmann said in an interview with BuzzFeed News, adding: “It was really addressing the general culture of our school, and keeping in mind several specific cases. But there are so many it’s hard to pinpoint just one and advocate for just one of them.”
After Mansmann’s parents and the ACLU of Maine filed a lawsuit in U.S. District Court to overturn her suspension, Judge Lance Walker issued a temporary restraining order, ruling that they were likely to prevail on the merits. “If school administrators,” Walker wrote acidly, “receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us?”
School officials should have taken the opportunity to stand down. Instead, they filed an appeal, with Cape Elizabeth School Board Chairwoman Susana Measelle Hubbs saying that administrators needed to be able to respond to statements “that are likely to spread fear and alarm, or to harm others,” according to a report by WGME and The Associated Press.
Mansmann’s suspension was put on hold pending final resolution of the case, the Portland Press Herald reported. The other two girls have not spoken publicly. It’s time for school officials to end this fiasco and apologize for trampling on the students’ free-speech rights.
Calvin Ellis
A local official in Rhode Island tells the public: Be nice — or else.
Anyone who has spent much time covering local government meetings knows that the internet isn’t the only place where you can find trolls. Cranks of various persuasions often show up so that they can yell, raise irrelevant issues and generally make pests of themselves. Sometimes they even have legitimate concerns.
Such gadflies have been dealt with since time immemorial by asking them to be quiet or, if that doesn’t work, asking them to leave. If they resist, there’s usually a police officer on hand to help them find the door. (These days, of course, they can just be muted on Zoom.)
Which is why Calvin Ellis,president of the town council in Exeter, Rhode Island, has earned a Muzzle. Last September, the council approved his unnecessary, speech-squelching ordinance requiring “decorum” by people who attend public meetings.
“We don’t anticipate enforcement,” said Ellis, according to a report by WJAR. “Only we want proper decorum, proper conduct to prevail.” Well, if you don’t “anticipate enforcement,” why do it in the first place?
Exeter has had its issues. Reportedly, some members of the public have walked out in the face of yelling, and on one occasion the Rhode Island State Police had to be called. But it’s hard to see how a rule mandating decorum would change that.
Here’s the most problematic part of the Exeter ordinance, as reported by the Johnston Sun Rise: “Any person making personal, impertinent, or slanderous remarks or who shall become boisterous while addressing the Town Assembly, Council, Board, or Commission, or any member thereof, shall be forthwith, by the presiding officer, barred from further audience before the Town Assembly, Council, Board, or Commission at that meeting, unless permission to continue is granted by a majority vote of the Town Assembly, Council, Board, or Commission.”
As Steven Brown, executive director of the ACLU of Rhode Island, put it in a statement: “When does a pointed criticism of a Council member for their stand on an issue become ‘personal’? … When will impassioned comments of a speaker — whether out of enthusiasm or anger — become improperly ‘boisterous’ and subject him or her to removal from the meeting?”
A short time after the measure was approved, the Narragansett Town Council rejected a similar measure. Exeter needs to reconsider. It should be possible to exercise some control over a public meeting without an ordinance that tramples on the First Amendment.
Timothy McCarthy
His pre-pandemic proposal to ban face masks at protests went nowhere.
If we had a category for Most Ironic Muzzle Award, it would surely go to Boston City Councilor Timothy McCarthy. Last September, according to WGBH News, McCarthy persuaded his colleagues to draft an ordinance banning face masks and other identity-shielding coverings at public demonstrations.
What prompted him were the face shields used by some counter-protesters at the anti-LGBTQ “Straight Pride” rally — the same counter-protesters who drew Judge Richard Sinnott’s attention (above). To be fair, McCarthy was targeting those engaging in violence, not peaceful protesters.
“When did people wake up in the morning and say, ‘Hey, let’s go to a peaceful protest, but don’t forget your razors, and your keys for handcuffs, and your face masks in case you get urine and bleach that you’re throwing at the cops, you don’t want to get that in your eyes,’” McCarthy said.
The irony, of course, is that because of the COVID-19 pandemic, we are now all required to wear face masks outdoors if we’re unable to practice social-distancing. Compliance with orders to wear face masks has been less than universal during the Black Lives Matter protests that have broken out over police brutality and racism, raising the specter of another coronavirus surge. Needless to say, if McCarthy’s misguided proposal had been approved, the Council would now be racing to repeal it.
Last September, McCarthy drew some guarded support from fellow councilors for his proposed face-mask ban, who noted that similar bans have been used to good effect against the Ku Klux Klan. Mayor Marty Walsh, in an interview with Jon Keller of WBZ-TV, said such a ban might make sense as long as there was an exemption for religious reasons.
At a subsequent Council meeting, though, mask-wearing opponents spoke out against the “absurdity” of the measure, according to a Boston Globe account. “Do you feel threatened right now?” asked Belmont resident Alex Marthews, who wore a mask to the hearing.
Anonymous speech is protected under the First Amendment. And it’s hard to see how an anti-mask ordinance could be enforced against those engaging in violence while leaving peaceful protesters alone.
Then again, wearing face masks in public is going to be with us for a long time. McCarthy’s idea, wrong-headed though it may have been, now seems like it’s from a distant, better world.
Portland (Maine) Police
Officers intimidate an outspoken critic by showing up at his house.
Journalist Christian MilNeil is the editor of the transportation website StreetsblogMASS, a former data reporter for the Portland Press Herald and a board member of the Portland Housing Authority. In other words, he’s not the sort of guy you would expect to spray two police substations with graffiti, as Portland Police officers claim and as he staunchly denies.
MilNeil believes the real reason that two officers showed up at his house one day last month was because of something rather different: his tweets that criticized the police. Based on the evidence, it appears that MilNeil is correct — and thus we are awarding a Muzzle to the Portland Police Department.
On June 9, as the officers approached, MilNeil took their photo through a window and tweeted: “IDK if this is related to my recent tweets but #portlandme police are at my home now and threatening arrest, they won’t say why.”
IDK if this is related to my recent tweets but #portlandme police are at my home now and threatening arrest, they won’t say why pic.twitter.com/Me2YXm5ohh
— Christian Neal MilNeil (@c_milneil) June 9, 2020
A short time later he added, “They’re making it pretty clear they’re upset with my recent tweets. One cop told my wife ‘I know about your preconceived notions of police — I know them for a fact.’” (MilNeil later said the officers did not specifically mention the tweets, but he inferred they had seen them from what they told his wife.)
It would appear that the officers were on a mission to intimidate an outspoken critic amid protests against police brutality. Among other things, MilNeil had tweeted about a police officer who’d killed people in 2017 and 2008 — the earlier incident because, according to MilNeil, the officer had “escalated a traffic stop.” He’s also tweeted in favor of defunding the police.
According to the Portland Press Herald, city spokeswoman Jessica Grondin said the graffiti had been written on two community policing substations, one of which was housed in a Portland Housing authority building. “It’s not because of the tweets,” she said in a text.
At deadline, it appeared that attempts were underway to get to the bottom of the incident. The Press Herald reported that City Councilor Kimberly Cook was seeking body-camera video of the encounter as part of the city’s investigation into how the police had responded to Black Lives Matter protests. The Press Herald filed a Freedom of Information Act request for the video, too, but was turned down, with the police citing investigatory exemptions.
Let’s hope some answers are forthcoming. It’s hard to imagine anything more chilling to free speech than having two police officers showing up on a critic’s doorstep and threatening prosecution on the basis of dubious charges.
It’s probably not a good idea for us to talk about messing around with free speech on the internet at a moment when the reckless authoritarian in the White House is threatening to dismantle safeguards that have been in place for nearly a quarter of a century.
On the other hand, maybe there’s no time like right now. President Donald Trump is not wrong in claiming there are problems with Section 230 of the Telecommunications Act of 1996. Of course, he’s wrong about the particulars — that is, he’s wrong about its purpose, and he’s wrong about what would happen if it were repealed. But that shouldn’t stop us from thinking about the harmful effects of 230 and what we might do to lessen them.
Simply put, Section 230 says that online publishers can’t be held legally responsible for most third-party content. In just the past week Trump took to Twitter and falsely claimed that MSNBC host Joe Scarborough had murdered a woman who worked in his office and that violent protesters should be shot in the street. At least in theory, Trump, but not Twitter, could be held liable for both of those tweets — the first for libeling Scarborough, the second for inciting violence.
Ironically, without 230, Twitter no doubt would have taken Trump’s tweets down immediately rather than merely slapping warning labels on them, the action that provoked his childish rage. It’s only because of 230 that Trump is able to lie freely to his 24 million (not 80 million, as is often reported) followers without Twitter executives having to worry about getting sued.
As someone who’s been around since the earliest days of online culture, I have some insight into why we needed Section 230, and what’s gone wrong in the intervening years.
Back in the 1990s, the challenge that 230 was meant to address had as much to do with news websites as it did with early online services such as Prodigy and AOL. Print publications such as newspapers are legally responsible for everything they publish, including letters to the editor and advertisements. After all, the landmark 1964 libel case of New York Times v. Sullivan involved an ad, not the paper’s journalism.
But, in the digital world, holding publications strictly liable for their content proved to be impractical. Even in the era of dial-up modems, online comments poured in too rapidly to be monitored. Publishers worried that if they deleted some of the worst comments on their sites, that would mean they would be seen as exercising editorial control and were thus legally responsible for all comments.
The far-from-perfect solution: take a hands-off approach and not delete anything, not even the worst of the worst. At least to some extent, Section 230 solved that dilemma. Not only did it immunize publishers for third-party content, but it also contained what is called a “Good Samaritan” provision — publishers were now free to remove some bad content without making themselves liable for other, equally bad content that they might have missed.
Section 230 created an uneasy balance. Users could comment freely, which seemed to many of us in those more optimistic times like a step forward in allowing news consumers to be part of the conversation. (That’s where Jay Rosen’s phrase “the people formerly known as the audience” comes from.) But early hopes faded to pessimism and cynicism once we saw how terrible most of those comments were. So we ignored them.
That balance was disrupted by the rise of the platforms, especially Facebook and Twitter. And that’s because they had an incentive to keep users glued to their sites for as long as possible. By using computer algorithms to feed users more of what keeps them engaged, the platforms are able to show more advertising to them. And the way you keep them engaged is by showing them content that makes them angry and agitated, regardless of its truthfulness. The technologist Jaron Lanier, in his 2018 book “Ten Arguments for Deleting Your Social Media Accounts Right Now,” calls this “continuous behavior modification on a titanic scale.”
Which brings us to the tricky question of whether government should do something to remove these perverse incentives.
Earlier this year, Heidi Legg, then at Harvard’s Shorenstein Center on Media, Politics and Public Policy, published an op-ed in The Boston Globe arguing that Section 230 should be modified so that the platforms are held to the same legal standards as other publishers. “We should not allow the continued free-wheeling and profiteering of this attention economy to erode democracy through hyper-polarization,” she wrote.
Legg told me she hoped her piece would spark a conversation about what Section 230 reform might look like. “I do not have a solution,” she said in a text exchange on (what else?) Twitter, “but I have ideas and I am urging the nation and Congress to get ahead of this.”
Well, I’ve been thinking about it, too. And one possible approach might be to remove Section 230 protections from any online publisher that uses algorithms in order to drive up engagement. When 230 was enacted, third-party content flowed chronologically. By removing protections from algorithmic content, the law would recognize that digital media have fundamentally changed.
If Jack Dorsey of Twitter and Mark Zuckerberg of Facebook want to continue profiting from the divisiveness they’ve helped foster, then maybe they should have to pay for it by assuming the same legal liability for third-party content as print publishers. Dorsey would quickly find that his tentative half-steps are insufficient — and Zuckerberg would have to abandon his smug refusal to do anything about Trump’s vile comments.
But wouldn’t this amount to heavy-handed government regulation? Not at all. In fact, loosening Section 230 protections would push us in the opposite direction, toward deregulation. After all, holding publishers responsible for libel, invasions of privacy, threats of violence and the like is the default in our legal system. Section 230 was a regulatory gift, and it turns out that we were too generous.
Let me concede that I don’t know how practical my idea would be. Like Legg, I offer it out of a sense that we need to have a conversation about the harm that social media are doing to our democracy. I’m a staunch believer in the First Amendment, so I think it’s vital to address that harm in a way that doesn’t violate anyone’s free-speech rights. Ending special regulatory favors for certain types of toxic corporate behavior seems like one way of doing that with a relatively light touch.
And if that meant Trump could no longer use Twitter as a megaphone for hate speech, wild conspiracy theories and outright disinformation, well, so much the better.
Statement by the Faculty of the Northeastern University School of Journalism Denouncing Police Attacks on Journalists:
The recent attacks on journalists by police in American cities, including on Northeastern University alumni, are unacceptable and do great damage to our democracy. They also jeopardize the ability of citizens to inform themselves about not just the current wave of protests but also our nation’s history of racism, bigotry and police brutality. Our society thrives on the free flow of information and the check on governmental authority provided by a free press. The vital work of the free press must be allowed to go on without the threat of harm and arrest. We stand with all journalists documenting this difficult chapter in American history, especially those from communities of color. We call upon all levels of government to end attacks by police on journalists and the institution of journalism, and to protect the First Amendment rights of protesters.
SIGNED BY:
Prof. Jonathan Kaufman, Director
Aleszu Bajak
Prof. Rahul Bhargava
Prof. Matt Carroll
Prof. Myojung Chung
Prof. Charles Fountain
John Guilfoil
Prof. Meg Heckman
Scott Helman
Prof. Carlene Hempel
Prof. Jeff Howe
Prof. Dan Kennedy
Prof. Laurel Leff
Prof. Dan Lothian
Peter Mancusi
Catherine McGloin
Meredith O’Brien
Prof. James Ross
Jody Santos
Prof. John Wihbey
Prof. Dan Zedek
The arrest and brief detention of a CNN crew on live television in Minneapolis early this morning was a stunning blow to the First Amendment. They were literally handcuffed and led away for doing their jobs in reporting on protests over the killing of George Floyd, a Black man, by a white police officer.
As the video reveals, the journalists were respectful, and correspondent Omar Jimenez clearly identified himself as a reporter. He told the state police officers several times that he and his crew would move wherever they were told.
That said, what happened to Jimenez and his colleagues was more common than you might realize — and more common than it should be. Last year, we bestowed a New England Muzzle Award upon Police Chief Armando Perez of Bridgeport, Connecticut for arresting and detaining Tara O’Neill, a reporter for Hearst Connecticut Media, during a Black Lives Matter protest.
“This is a public sidewalk and I’m the press,” O’Neill later recalled telling the officer who arrested her, according to media reports. “He said, ‘OK,’ and cuffed me.”
As with this morning’s Minneapolis arrests, the misconduct by police enabled them to operate without being watched by O’Neill and her pesky smartphone. Nevertheless, she was able to film her own arrest:
In a better-known case, Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly were arrested at a McDonald’s in Ferguson, Missouri, during the demonstrations in 2014 over the killing of Michael Brown, a young African American man, by a white police officer.
Before that, Josh Stearns, now director of the Public Square Program at the Democracy Fund, put together a massive compilation of social-media posts documenting the arrest of journalists at Occupy protests around the country. (Here is a very small slice of what was going on from the Committee to Protect Journalists.) Storify, a tool for aggregating social media, recognized Stearns’ efforts with a “Storify of the Year” award.
Unfortunately, Storify later shut down, taking much of Stearns’ work with it.
Update. Stearns has posted a Twitter thread offering more background.
Update II. Noting that Jimenez is Black and Latino. A white CNN reporter standing nearby was not arrested.
CNN reporter Omar Jimenez, who is black and Latino, and his team were arrested by officers early this morning in Minneapolis. Not far away, CNN journalist Josh Campbell, who is white, says he was "treated much differently." https://t.co/1ZpqdyJON2pic.twitter.com/vPFLTx8UnK
For an aspiring autocrat like Hungarian Prime Minister Viktor Orbán, the COVID-19 pandemic has been a gift-wrapped opportunity to crack down on what’s left of his country’s free press.
Hungary’s parliament recently approved a state of emergency that allows Orbán to rule by decree. Among other things, journalists may be imprisoned for up to five years if they spread what the government considers to be misinformation about COVID-19. According to an anonymous journalist quoted in The Guardian, the measure began having its censorious effect even before it was voted on, as she learned after she called a hospital to ask about doctors who may have contracted the virus.
“A few minutes later,” she said, “the hospital’s chief communication officer called me back and asked if I think it’s a good idea to keep asking about this, a day before the government’s bill will be passed.”
Even as COVID-19 spreads disease, death and economic disruption across the world, it may also be contributing to repression in the name of protecting public health. The ominous developments are described in a new report by Reporters without Borders (known by its French acronym, RSF), which accompanies its annual World Press Freedom Index.
The index ranks countries on the basis of how much freedom journalists have to do their jobs and hold the powerful to account. According to RSF, the rankings have dropped several notches among countries that have suppressed the media as part of their response to COVID-19 — not just Hungary (now 89th), but also China (177th), Iran (173rd) and Iraq (162nd).
“The public health crisis provides authoritarian governments with an opportunity to implement the notorious ‘shock doctrine’ — to take advantage of the fact that politics are on hold, the public is stunned and protests are out of the question, in order to impose measures that would be impossible in normal times,” said RSF Secretary-general Christophe Deloire in a statement accompanying the report.
Cracking down on the media is not the only step governments are taking to stifle dissent. As The New York Times recently noted in a round-up of repressive responses to COVID-19, countries ranging from democracies such as Britain and Israel to more authoritarian states such as Chile and Bolivia have trampled on their citizens’ rights in the name of protecting public health. The measures include enhanced detention powers, increased surveillance and, in Bolivia’s case, postponing elections.
Draconian though those measures may be, threats to freedom of the press are uniquely dangerous because of its role as a monitor of power. Take that away and we have no way of knowing about the full extent of government repression.
Nor has the United States escaped the notice of RSF. Although its press freedom ranking of 45th is up slightly over last year, it still lags well behind Western European countries, in large measure because of President Donald Trump’s war against the media. Among other things, the report cites the Justice Department’s decision to file espionage charges against WikiLeaks co-founder Julian Assange as well as the “public denigration and harassment of journalists.”
Although RSF doesn’t mention it, the COVID-19 pandemic could accelerate the deterioration of press freedom in the U.S. In recent weeks President Trump has commandeered an hour or two of television time on many afternoons, using his bully pulpit, so to speak, to insult individual reporters when they try to ask tough questions. The media have been willing participants in their own delegitimization, with many outlets giving Trump free airtime and individual reporters rarely acting in solidarity.
There may be limits. As The Washington Post reported, a CNN reporter refused to move from her front-row seat on Friday after being ordered to do so by a White House official. Despite threats to involve the Secret Service, the White House apparently backed off. (Seat assignments are managed by the independent White House Correspondents Association.) And Trump — humiliated by the mockery he received after suggesting that people could ingest bleach to fight COVID-19 — vowed not to take part in any more press briefings. (By Monday, unsurprisingly, he was back at the podium.)
But though there is a buffoonish nature to Trump’s war against the press that sometimes makes it difficult to take him seriously, the fears raised by the pandemic and the economic catastrophe that has resulted could empower the president to take new measures against journalists, whom he regularly calls “enemies of the people.”
We may be in the midst of a well-meaning reduction in media access at the local level as well. Local officials, like all of us, are meeting via Zoom, which makes it more difficult for reporters to understand what’s going on and to ask questions. And when public officials try to be open, they run the risk of being Zoom-bombed. Just last week the New Haven Independent reported that the city’s board of alders got hit with child pornography. That same night, the Hamden legislative council had to shut down its meeting in the face of Zoom-bombers posting racist and homophobic slurs.
Zoom has security features, such as password protection and waiting rooms, that make it harder for trolls to break in. But that also makes it harder to live up to the letter and the spirit of open-meeting laws. The New England First Amendment Coalition recently urged that local officials delay crucial decisions until in-person meetings can be resumed, saying, “Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed.” But what if a month or two becomes six? Or 12? Or 18?
The pandemic is also accelerating the censorship of speech on Facebook and other internet platforms. According to an essay in The Atlantic by law professors Jack Goldsmith of Harvard and Andrew Keane Woods of the University of Arizona, this is actually a positive development, as, even before COVID-19, algorithmic tools were being brought to bear on “bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content.”
They add: “What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated ‘normal’ to return to. We live — and for several years, we have been living — in a world of serious and growing harms resulting from digital speech.” Or, as they put it elsewhere in their essay: “In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.”
Good Lord. That’s a lot to wrap our minds around. As Noah Rothman puts it in Commentary: “Much of Goldsmith and Woods’ argument glosses over the important consideration that the Chinese model is dependent on coercion.”
But I’m going to leave aside the larger debate about free speech and repression so that I can hone in on one small but vitally important issue that Goldsmith and Woods gloss over. We already live in a world in which most news consumption takes place online, and an ominously large percentage of that consumption is mediated by Facebook. If Facebook’s role as an arbiter of news is going to grow even more powerful, and if we’re going to applaud the Zuckerborg for eliminating speech that it deems harmful, it seems to me that we’re going to have a free-press problem that is exponentially larger than Reporters without Borders’ most dystopian vision.
Then again, for a lot of us, freedom isn’t all that it’s cracked up to be. According to a 2018 study by Elizabeth J. Zechmeister of Vanderbilt University, about one in four U.S. adults “believes a coup would be justifiable in times of high crime or high corruption.” Imagine to what heights that support might soar if we get into, say, September or October, and conditions continue to deteriorate.
Former Vice President Joe Biden, the likely Democratic presidential nominee, has already warned that President Trump might try to delay the November election. Would he try? Would he attempt to declare a state of emergency, as Hungarian leader Orbán has done? Would U.S. military leaders obey their commander-in-chief — or their oath to defend the Constitution?
Our liberties are fragile, and that is especially the case at a terrible moment like the one we’re living through. Can freedom of the press survive the pandemic? It’s already been seriously damaged in Hungary and elsewhere. And it’s going to require vigilance — and luck — for it not to be seriously damaged in America as well.
