Category: First Amendment

A new book calls for media reform. The pandemic may give those ideas a boost.

Previously published at WGBHNews.org.

It’s hard to imagine better timing for a book about the future of news.

In “Democracy without Journalism? Confronting the Misinformation Society” (Oxford University Press), Victor Pickard calls for vastly increased funding for public-interest reporting and public media, newsrooms that are run democratically by journalists and members of the community, and breaking up or strictly regulating monopolies such as Google and Facebook.

Back in those golden days of, say, early March, Pickard’s agenda would likely have been dismissed, at best, as intriguing but unrealistic and, at worst, as representing an unacceptable intrusion by government that would inevitably compromise journalism’s watchdog role.

But then came the instant recession caused by COVID-19 and, with it, alarmed calls for federal action to save journalism — especially local journalism, already in extremis. Among those demanding action: Washington Post columnist Margaret Sullivan; Craig Aaron, the co-CEO of the media-reform organization Free Press; and Steven Waldman and Charles Sennott, the co-founders of Report for America.

How bad is it? The news-business analyst Ken Doctor, writing at the Nieman Journalism Lab, reports that readership of newspaper websites is exploding — yet advertising is plummeting so quickly that losses are piling up. Every day, it seems, comes news of more papers eliminating print editions, cutting wages and laying off reporters. Which is actually the ideal set of circumstances for Pickard to make his argument that the contradictions of for-profit media have reached something of an endpoint. As an alternative, he proposes what he calls a “social democratic” model for journalism.

An associate professor of communication at the University of Pennsylvania’s Annenberg School, Pickard is a protégé of Robert McChesney and a former fellow at the aforementioned Free Press and the New America Foundation. The case he puts forth is that not only should government play a much bigger role in ensuring the health of journalism, but that the extreme market libertarianism that rules the media today is a relatively new phenomenon.

As Paul Starr (in “The Creation of the Media,” 2004) and others have before him, Pickard observes that the American press got an enormous boost starting in Colonial times by way of generous postal subsidies — a benefit that lasted until several decades ago, when market fundamentalists began demanding that the Postal Service cover its expenses.

Moreover, various regulatory efforts aimed at reducing commercialism in radio and television bore little fruit. By the late 1940s, Pickard says, they had pretty much run their course, and some of the forward-looking leaders of that era were pushed out of public service during the McCarthy-era crusade against progressives and reformers. “The alarm bells quieted, plans for bold reforms receded, and the status quo quietly but assuredly reasserted itself,” Pickard writes. “Nevertheless, it is important to recall that none of this was inevitable; it could have gone quite differently.”

One theme that Pickard turns to repeatedly is the idea that “positive rights,” as he calls them, should be regarded as important as “negative rights” when thinking about media policy. What are negative rights? As Pickard describes them, they protect a media owner from government regulation, something that has come to be seen in many circles as guaranteed by the First Amendment.

But negative rights matter a great deal, as they involve First Amendment protections such as the freedom not to be censored, protection against abusive libel cases and the right not to have limits put on political speech, including the endorsement of candidates. Unfortunately, endorsements are already endangered given the increasing prominence of nonprofit news organizations, which are prohibited from boosting candidates as a condition of keeping their tax-exempt status.

By contrast, positive rights, in Pickard’s formulation, involve the public’s right to a diverse, democratic media. Here’s how he describes it: “True inclusion means that communities are not only receiving high-quality news, but are also deeply engaged in the news-making process itself. Community members should be involved in the governing process and empowered to organize their own newsrooms and collaborate in participatory journalism. Community engagement in the news-making process is the best way to create a new kind of journalism, one that is accountable and trustworthy.”

This sounds worthy, but I’m concerned about what it would look like in practice. A strong news organization is often the result of one person’s vision, or that of a small group of people. Opening things up to democratic governance runs the risk of lowest-common-denominator journalism in which some members of the community demand that certain stories be covered, or not covered, because of individual or group sensitivities.

That’s a potential hazard with cooperatively owned news organizations, an idea that Pickard supports. I’m currently tracking The Mendocino Voice, a digital news outlet that is transitioning to the co-op model. I’m interested to see if they can pull it off, and I wish them well. But a healthy news ecosystem requires different models — for-profit, nonprofit, co-ops, volunteer projects and the like. On several occasions Pickard suggests that we’ve hit the limit with regard to for-profits and even traditional nonprofits. I’m not willing to go that far.

Where I would agree wholeheartedly with Pickard is that our public media system is woefully underfunded. Not only does Pickard document the exponentially greater sums spent on public television and radio in virtually every other Western democracy, but he also comes up with the perfect anecdote to illustrate his point: he tells us the federal government’s annual contribution to PBS — about $445 million a year — is considerably less than the $626 million the Pentagon spends on its public-relations office.

A well-funded PBS and NPR, insulated from political pressure, Pickard says, could go a long way toward solving the local-news crisis by ramping up coverage of communities that have been abandoned by legacy newspapers.

“Transforming the U.S. media system into a democratic force,” Pickard writes in conclusion, “requires a robust policy program of regulating or breaking up information monopolies, creating public alternatives to commercial news media, and empowering media workers, consumers, and communities to engage with and create their own media.”

The journalism crisis has been with us for a decade and a half, and it’s only become more acute over time. The coronavirus pandemic underscores two realities: we need local news, and there may be no reliable way to pay for it through traditional market forces.

Pickard outlines one set of possible solutions. Policymakers would do well to consider his ideas — and to act before the news we need to govern ourselves becomes one more victim of the virus that is currently upending our way of life.

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Florida governor’s ban on reporter violates the First Amendment

Ron DeSantis. Photo (cc) 2017 by Gage Skidmore.

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.

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How Trump is weaponizing libel and threatening the First Amendment

Photo (cc) 2016 by Gage Skidmore

So now President Donald Trump’s re-election campaign is filing SLAPP suits against news organizations — that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.

The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaign’s tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?

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The Times profiles right-wing media figure Dennis Prager. Here’s some background.

Dennis Prager. Photo (cc) 2018 by Gage Skidmore.

The New York Times today profiles Prager University, a right-wing meme factory founded by media figure Dennis Prager. In case you don’t know anything about Prager, I thought you’d be interested in some background.

In 2017, I gave a WGBH News New England Muzzle Award to YouTube and its owner, Google, for restricting access to a pro-Israel video made by Harvard Law School professor Alan Dershowitz for Prager University. The video could still be accessed, but by installing a speed bump, YouTube sent a clear signal that there was something transgressive about it — a ridiculous stance regardless of what you think of Dershowitz’s views.

In 2016, Boston Globe columnist Jeff Jacoby mixed it up with Prager after Jacoby accused his fellow conservatives of hypocrisy for throwing in with Donald Trump despite his well-documented moral depravity. That led to some back-and-forth between Prager and Jacoby in which Prager accused Jacoby of “gratuitous hatred.” Jacoby responded:

For me, the most disheartening aspect of the whole Trump phenomenon has been the sight of so many good, principled people deciding that their good principles need not keep them from marching behind Trump’s squalid banner.

As you’ll see from Nellie Bowles’ Times story, Prager is quite a piece of work.

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Why a lawsuit against a Black Lives Matter activist threatens the First Amendment

DeRay Mckesson earlier this year. Public domain photo by the LBJ Library.

Previously published at WGBHNews.org.

In September 2018, President Donald Trump won an important First Amendment victory. By a 3-0 vote, the U.S. Court of Appeals for the 6th Circuit ruled that neither Trump nor his campaign could be held liable for injuries suffered by protesters at the hands of Trump supporters during a March 2016 rally even though the then-candidate had yelled to “get ’em out of here.”

The court’s reasoning was based on the straightforward application of free-speech principles: Trump had not advocated violence at the Kentucky rally (in fact, he had also said “don’t hurt ’em”), and therefore he couldn’t be successfully sued even though some people were roughed up.

The decision may have been a disappointment for those who thought Trump should be held accountable for his careless words. But under the First Amendment, political speech receives the highest level of protection except in the most extreme circumstances.

Now, though, those principles are in danger. Based on a similar set of facts, the 5th Circuit ruled recently that a police officer in Baton Rouge, Louisiana, can sue Black Lives Matter activist DeRay Mckesson for injuries he received at the hands of a rock-throwing protester — even though, as The Washington Post reported, “Mckesson did not throw the rock or tell anyone else to throw it.”

Mckesson had organized the 2016 demonstration following the police killing of a black man named Alton Sterling. The police officer, whose identity has not been revealed, claims that Mckesson acted negligently by not foreseeing that the demonstration could become violent.

“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” Mckesson said in a statement released by the ACLU, which earlier this month asked the Supreme Court to take up the case. “If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can’t let that happen.”

The Supreme Court precedent that protected Trump and that, by all rights, should protect Mckesson is NAACP v. Claiborne Hardware Co., a case decided in 1982. The NAACP in 1966 called for a boycott of white-owned businesses in Claiborne County, Mississippi — a nonviolent form of protest that nevertheless led to some acts of violence. In 1969, several of the business owners sued the NAACP and were successful in the state courts. But the Supreme Court ruled unanimously that the NAACP could not be held liable for engaging in nonviolent free-speech activities regardless of actions taken by people not under the organization’s control.

Although the cases against Trump and Mckesson, like the case against NAACP, were for alleged civil offenses, it’s also worth noting the high bar the Supreme Court has set for incitement to violence in criminal cases. In the landmark 1969 case of Brandenburg v. Ohio, the court threw out the conviction of Ku Klux Klan leader Clarence Brandenburg because the threats he made at a rally against African Americans and Jews were non-specific and would not result in imminent violence.

In their petition to the Supreme Court, the ACLU’s lawyers argue that allowing the lawsuit against Mckesson to proceed would have a chilling effect on anyone who might wish to organize a nonviolent protest.

“Given the regularity with which violence and First Amendment activity co-occur and the vagaries of state law liability rules,” the lawyers wrote, “only the most intrepid citizens would exercise their rights and risk ruinous liability if they could be held liable for the wrongful acts of others.”

Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, put it this way in the Washington Post story: “If this is allowed to stand, anybody can show up and throw a rock at a protest to bankrupt a movement they disagree with. People know when they step into the street that they might have to spend some hours in jail or pay a fine. But if they might have to pay a multi-million dollar civil judgment — that’s something they’re not prepared for, and can’t possibly be expected to prepare for.”

The case should prove to be a telling indicator of where the Supreme Court stands on free speech now that it has swung sharply to the right. Only four of the nine justices are needed take up the case.

Traditionally, even the court’s more conservative members have proved to be staunch advocates of the First Amendment. But if Trump’s justices, Neil Gorsuch and Brett Kavanaugh, were to break with that tradition, the case of DeRay Mckesson v. John Doe could prove to be a signal moment in our march to a less open, less free society.

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A reinterpretation of Title IX threatens student journalism about sexual assault

Photo (cc) 2016 via Wikimedia Commons

My Northeastern colleagues Laurel Leff and Meg Heckman report on a new, serious threat to freedom of the press on college campuses: a federal reinterpretation of Title IX that puts faculty members at risk if they advise students who are reporting on sexual assault. They write at The Conversation:

At issue are increasingly common policies that require virtually every university employee to alert school officials if they hear even the slightest rumor of sexual misconduct — on or off campus — involving students or employees.

On most campuses, clergy members, mental health counselors and health care providers are exempt from such mandatory reporting requirements. University-affiliated journalists are not despite the fact that they also often need confidentiality to do their jobs effectively.

Yet, journalism professors routinely learn of possible sexual misconduct in their roles as advisors to student newspapers, or in critiquing students’ classroom work. (It’s also increasingly common for journalism educators to serve as editors in charge of school-sponsored news organizations designed to fill gaps in the local media ecosystem.)

I heard about this for the first time last week. I immediately went through a mental checklist as I tried to remember whether any of my students was working on a story about sexual misconduct. They weren’t. But I’ve dealt with such stories in the past, and apparently I will not be dealing with them in the future.

This is an outrageous attack on the First Amendment. It even pertains to NPR affiliates associated with colleges and universities, which is to say most of them. What’s needed, as Leff and Heckman write, is a state law “exempting university-affiliated journalists and journalism educators from mandatory reporting requirements when they are advising student journalists.”

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

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

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

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

Justice Stevens

Previously published at WGBHNews.org.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previously published at WGBHNews.org.

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

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

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

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

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

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

The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the seventh year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.

The envelopes, please.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Danny Schechter’s legacy and the passion of Julian Assange

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

Previously published at WGBHNews.org.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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