Talk is cheap. If President Trump actually followed through on his multifarious threats against the First Amendment, then those of us who report and comment on the news would already be on our way to a detention camp — a beautiful detention camp, for sure — somewhere in the empty spaces of Oklahoma.
He has, after all, threatened to undo the laws that protect journalists from frivolous libel suits. He has said that he would revoke Amazon’s (nonexistent) tax breaks in retaliation for the harsh coverage he’s gotten from The Washington Post, owned by Amazon chief executive Jeff Bezos. His attorney general, Jeff Sessions, has said that he may unleash a wave of subpoenas that would force reporters to identify anonymous leakers. And just recently, Trump demanded a Senate Intelligence Committee investigation into media organizations that report what he calls “fake news” and suggested that the broadcast licenses held by NBC should be revoked.
But Trump in theory and Trump in practice are two entirely different things. Though his anti-press rhetoric can be frightening at times, his follow-through has been pretty much nonexistent. Meanwhile, as First Amendment expert Jameel Jaffer says, Trump could legitimately if inadvertently lay claim to presiding over “the most transparent administration in history,” to invoke a solemn promise by Barack Obama that unfortunately preceded eight years of stonewalling on public records as well as an unprecedented crackdown on leakers.
“To say that the Trump administration leaks like a sieve would be very unfair to sieves,” Jaffer said Tuesday evening at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy. Moreover, Trump’s Twitter feed — he has tweeted more than 2,000 times since Election Day — offers a look into “the unvarnished presidential id,” Jaffer said, quoting Nixon biographer John Farrell.
Jaffer, currently the executive director of the Knight First Amendment Institute at Columbia University, had previously served as deputy legal director for the ACLU. His work on a lawsuit aimed at shaking loose documents from the George W. Bush administration resulted in the publication of the so-called torture memos — the legal rationale produced by the White House to justify waterboarding and other inhumane tactics used in questioning terrorism suspects.
Despite Jaffer’s backhanded praise for Trump, he is hardly sanguine. For one thing, he noted, Trump’s tweets come at us in such volume that they distract us and distort the public discourse. “We should be careful not to mistake noise for transparency,” he said. In addition, seeming openness in one realm is often used to mask efforts to cover up information elsewhere. For instance, the White House recently released an eight-minute video on its efforts to deal with the disastrous aftermath of Hurricane Maria in Puerto Rico while simultaneously removing statistics related to the relief effort from government websites.
Trump’s rhetorical attacks on the press — including his references to news organizations as “the enemy of the American people” — need to be taken seriously as well, Jaffer said. He called those attacks “an assault on transparency” aimed at undermining faith in the media, calling into question even “provable truths.” The effect, he said, is to replace journalists with Trump himself as the arbiter of what is true and false. And at least among his strongest supporters, he’s had some success. For instance, a Morning Consult/Politico poll released on Wednesday found that 46 percent of those surveyed “believe major news organizations fabricate stories about Trump.” That proportion rises to a stunning 76 percent among Republicans. (For a full breakdown, click here and turn to page 146.)
“If this is transparency at all,” Jaffer said, “it is transparency we should distrust and interrogate rather than applaud.”
My own fear — and I think Jaffer would agree — is that Trump has stirred up such hatred for the media (not that we were ever popular) that basic press protections could be in danger. Yes, you can believe that the courts will protect us; Trump’s Supreme Court justice, Neil Gorsuch, whatever his other shortcomings, seems as likely to support a robust First Amendment as his colleagues. But as Charles Pierce recently noted at Esquire.com, we are closer than you might think to the unthinkable prospect of a constitutional convention at which everything would be up for grabs, including the Bill of Rights. I do not assume that basic constitutional guarantees would survive in the current environment.
As I said, talk is cheap. But talk such as Trump’s cheapens the public discourse, giving people permission to indulge their hatreds and prejudices. We’re already seeing it happen.
At the end of Jaffer’s lecture, he was asked what makes him hopeful in this dark time. His response: The outpouring of protest against the racist violence in Charlottesville, Virginia, including tens of thousands of people in Boston who demonstrated against hate. “It’s a great relief to me to see people coalescing around this stuff,” he said.
So is Trump a threat or a menace to the First Amendment? I think it’s important to separate Trump’s words from his actions. To this point, at least, the president’s anti-media rhetoric has had no more effect than his attacks on Obamacare (dismantledlast Thursday; revived with his support on Tuesday), or his ever-shifting views on tax cuts. My philosophy: Keep a close ear out for what he says — but don’t panic until he actually does something.
I’ve been trying to think through what would change if the First Amendment were as untouchable as the Second. I’m sure this is an incomplete list, but here are a few ideas that come to mind:
Child pornography would be legal. It might still be illegal to make it because of the horrific child abuse it would entail. But sell, distribute or possess it? No problem.
Obscenity in general would be legal. This is a very slippery concept, and in fact it is difficult to know exactly what would be considered obscene circa 2017. But depictions of bestiality or rape would be fine. As with child pornography, it’s possible that someone could be prosecuted for the underlying acts, but not for selling, distributing or possessing it.
Libel would cease to exist. Want to publish something false and defamatory about someone? Go for it. And don’t worry about whether she’s a private figure. That distinction is so 20th-century.
If the United States is at war, and you somehow come into possession of plans detailing the specifics of an operation against enemy troops, well, go ahead and publish them. Under our new, absolutist First Amendment, Col. Robert McCormick did nothing wrong.
If you’re, say, a Ku Klux Klan leader, and you exhort a mob to lynch a black man standing at the periphery of the crowd, and they do it, you have nothing to worry about. The criminals who actually carry out the deed could be prosecuted for murder, of course, but under an absolutist view of the First Amendment there would be no such thing as incitement.
No rational person, of course, would support any of these changes to the First Amendment. Even someone who considers himself pretty much an absolutist, as I do, has to acknowledge that not every single form of expression can be protected by the Constitution. So why can’t extreme gun-rights advocates see that they’ve abandoned all rationality?
Do college students fear the First Amendment? You would think so, based on the results of a survey published last week by the Brookings Institution, which found that the nation’s campuses are a bastion of political correctness whose coddled denizens favor the warmth of safety and like-mindedness over the brisk waters of vigorous, uncomfortable debate.
But as someone who has been teaching college students for a dozen years, the results struck me as entirely at odds with what I hear from the smart, thoughtful young men and women I deal with every day. Last week I put that proposition to the test. I’ll get to that in a bit — but first some background.
The study was led by Brookings and UCLA scholar John Villasenor, who said he surveyed some 1,500 students in 49 states. Certainly if Villasenor’s findings are accurate, then there is plenty of cause for concern. Among other things, he found that a plurality of students (44 percent to 39 percent) wrongly believe that the First Amendment doesn’t protect hate speech; that 51 percent say it is acceptable for students to shout down a speaker “known for making offensive and hurtful statements”; and that 19 percent even think it’s all right to engage in “violence to prevent the speaker from speaking.” Villasenor wrote:
The survey results establish with data what has been clear anecdotally to anyone who has been observing campus dynamics in recent years: Freedom of expression is deeply imperiled on U.S. campuses.
Villasenor’s work created something of a media sensation, playing as it did into stereotypes that today’s generation of students are delicate snowflakes who’d rather walk out on a speaker whose views they disagree with than listen to ideas that challenge their preconceived notions. Washington Post columnist Catherine Rampell put it this way: “Here’s the problem with suggesting that upsetting speech warrants ‘safe spaces,’ or otherwise conflating mere words with physical assault: If speech is violence, then violence becomes a justifiable response to speech.”
And for a public saturated by media reports of campus intolerance directed at controversial right-wing speakers such as Ann Coulter and Milos Yiannopoulos, the findings seem like they must be true. Attorney General Jeff Sessions joined in the pile-on this week, telling an audience at Georgetown University that “freedom of thought and speech on the American campus are under attack.” But if you’re looking to the Brookings survey for confirmation of such sentiments, you may find that you need to look elsewhere: the methodology is being seriously questioned.
Lois Beckett of The Guardian administered a thorough thrashing to Villasenor, quoting a polling expert that his results amounted to “malpractice” and “junk science” and that “it never should have appeared in the press.” Beckett’s most serious charge was that, rather than polling 1,500 randomly selected students, Villasenor relied on an opt-in online panel of respondents who said they were college students. In other words, the survey was not much different from being urged to visit a political website after a candidates’ debate and registering your opinion as to who won. “If it’s not a probability sample, it’s not a sample of anyone, it’s just 1,500 college students who happen to respond,” the polling expert, Cliff Zukin, told Beckett.
Some of Beckett’s complaints seem petty. For instance, she notes — as Villasenor acknowledges — that the study was funded by the libertarian Charles Koch Foundation. Frankly, though, a reputable organization like Brookings is accustomed to dealing with such funding issues, and it seems unlikely that the malign hand of the Koch brothers reached in to alter the results. (As you may know, David Koch’s service on the WGBH board was the source of some controversy several years ago. He is not currently a member.) Beckett also dismisses Villasenor on the grounds that he is an electrical engineer. But according to his Brookings biography, he appears to be something of a polymath whose academic interests include public policy and law. Still, Villasenor’s use of an opt-in questionnaire rather than a random survey calls his findings into question.
Last week I conducted my own non-scientific survey of the nearly 50 students who are enrolled in my introductory course at Northeastern University on journalism and the news media. About half are journalism majors; the rest are from across the university and are studying in fields such as business, computer science, and, yes, electrical engineering.
We went into some depth. I organized the class into five teams, each of which spent about 20 minutes wrestling with one of the five questions on Villasenor’s survey. That was followed by team presentations and, finally, a show of hands on the five questions.
Now, obviously, asking people to take a stand in full view of their peers is problematic, so I don’t want to make any great claims for the accuracy of my survey. But the findings matched the comments made during class discussion. And they were heartening. Thanks to one well-informed student, they all learned that hate speech is, in fact, protected by the First Amendment. What impressed me was that after hearing that, an overwhelming majority agreed that such speech should be protected.
Only a handful of students thought it was acceptable to shout down a speaker — and they made it clear that they believed as they did because protesters also have First Amendment rights. Not a single student came out in favor of violence. On the question of whether a university must balance controversial speakers with those of opposing views, the consensus was that such balance should emerge in the selection of speakers over time — not that every controversial speaker should be expected to debate an opponent. They also overwhelmingly agreed with the proposition that a university should foster an “open learning environment where students are exposed to all types of speech and viewpoints” (to use the survey’s wording) rather than create “a positive learning environment for all students by prohibiting certain speech or expression of viewpoints.”
Every year my friend and colleague Harvey Silverglate, a leading civil-liberties lawyer, writes a round-up of outrages against free speech at colleges and universities called the “Campus Muzzles.” Free speech is a real issue on many campuses, and I don’t want to assume that Northeastern is an exception.
Neither, though, am I worried about the future of political discourse as the next generation assumes positions of influence and power. The anti-First Amendment forces are a minority. Antifa is real but tiny. My experience is that most college students are smart, tolerant, and eager to hear all points of view — including those that clash with their own beliefs.
New Hampshire secretary of state Bill Gardner, who has refused calls to resign from President Trump’s bogus voter-fraud commission, won a New England Muzzle Award from WGBH News earlier this year. His dubious achievement: continuing to fight against the scourge of ballot selfies, a form of free expression that several federal courts have ruled is protected by the First Amendment.
Bonita Yarboro traveled with three friends from Hamden, Connecticut, to protest against “racism, anti-Semitism, every -ism out there.” Photo (cc) by Dan Kennedy.
There’s been so much written and said about free speech and the lack thereof at Saturday’s rally on the Boston Common that the big picture is in danger of being lost. So let me try to bring it back into focus. An estimated 30,000 to 40,000 people turned out not to protest what a few right-wingers had to say or to rumble with the police. Rather, they came to express their anger and disgust with President Trump.
Lest we forget, back in May a similar event drew just a few hundred people, with the two sides being kept apart by police officers. We might have seen a similar response this past weekend. But then a motley band of white supremacists and neo-Nazis marched in Charlottesville, Virginia. A fellow-traveler was accused of driving into a crowd of people who had come to protest against such hate, killing one of them, Heather Heyer. And Trump, on his third attempt to address what had happened, threw a temper tantrum of a news conference in which he placed racists and those who oppose racism on the same moral plane.
It was that reality that was on the minds of those who showed up at the Reggie Lewis Center in Roxbury on Saturday morning. I was among them, carrying a notebook and a smartphone with handmade press credentials around my neck so no one would think I was one of the protesters. The crowd reminded me of the folks who’d turned out in Copley Square last January to protest Trump’s first, botched Muslim ban: earnest liberals from the suburbs, Black Lives Matter activists, young people, LGBTQ people, lots of racial diversity, lots of ink (not visible last winter), and a large number of clergy. Mayor Marty Walsh, Police Commissioner Bill Evans, and Attorney General Maura Healey all put in appearances on Saturday.
There were, of course, a few political radicals on hand. Two older women who would only give me their first names held up a large banner that said “No Free Speech for Fascists” — and, in smaller type, “Progressive Labor Party,” a far-left group. I asked them if they thought their views contradicted the First Amendment’s guarantee of free speech. “There is no free speech,” Ruth instructed me. “Speech costs a lot of money.” Added Heidi: “We need to stop this hate speech.”
More typical was a young African-American woman named Bonita Yarboro of Hamden, Connecticut, who was holding a green sign that read “I am Black and I MATTER. Any questions?” I asked her what had brought her to Boston and what her hopes were for the counter-protest, dubbed “Fight Supremacy” by its organizers. “Four of us came up together in a Volkswagen Beetle,” she said. “I just want to stand up against racism, anti-Semitism, every -ism out there.”
We got under way a little before 11. The march down Tremont Street toward the Boston Common was a rolling celebration. The police officers who lined the route were professional and friendly. Charlie Pierce wrote in Esquire that Police Superintendent Willie Gross was posing for selfies with marchers.
By 1, with our destination still ahead of us, word started to ripple through the crowd that the rally was over and that the right-wing speakers had left. With the Common just ahead of me, I spotted state Rep. Byron Rushing, a South End Democrat, who told me he’d been prohibited from entering the 75-yard zone around the Parkman Bandstand that police had set up to protect the speakers. “I came down to hear them, and they wouldn’t let me in,” he said. “Freedom of speech should be reciprocal. If they can talk, I should be able to listen.”
In fact, there remain some legitimate concerns about how the authorities handled access to the bandstand. The police department had a genuine public-safety challenge on its hands, and the buffer zone was probably a necessity — but it wouldn’t have been as onerous if, say, a few pool reporters had been allowed in to hear what the speakers had to say. It didn’t help that Commissioner Evans issued a statement in which he said it was “a good thing” that the right-wingers couldn’t get their message out. The ACLU and others have expressed concern.
But the triumph of the counter-protest was not that it had silenced a few extremists (and it’s not even clear how extreme they were, given that some who had been scheduled didn’t show up). The triumph was that the crowd had expressed its opposition to the racism and hatred that these days is indulged, even amplified, by the president of the United States. I couldn’t help but feel a surge of patriotism in the face of such idealism.
Trump’s outrages come at us every day. But his sociopathic reaction to the events in Charlottesville seems like a watershed moment of the sort that greeted the “Access Hollywood” tape, on which he was heard profanely bragging about groping and sexually assaulting women. From business leaders to Republican officials, a new wave of people has begun moving away from him. Republican Sen. Bob Corker of Tennessee, presidential historian Douglas Brinkley, and investigative reporting legend Carl Bernstein are among the serious, careful folks who recently have questioned Trump’s mental stability. (Brinkley and Bernstein made their remarks on CNN.)
This can’t go on, but how will it end? Regardless of what comes next, I’m proud of my city for the stand it took this past weekend.
It’s now clear why no one could hear the right-wing speakers on the Boston Common on Saturday. The police kept demonstrators 75 yards away, and the speakers didn’t have any amplification. I’m not sure whether that was a police decision or a result of their own poor planning. (And I doubt it would have made a difference.)
The police had a huge dilemma on their hands. Even though the vast majority of the 40,000 counter-protesters were peaceful, there could have been some real trouble from a few hotheads if they had been allowed any closer. There were only a few dozen right-wingers.
I’m not sure how this could have been handled differently. Someone suggested that a pool reporter should have been allowed in, and that certainly would have been better than nothing. It didn’t help that BPD Commissioner Bill Evans issued a statement in which he sounded glad that the speakers were not able to get their message out:
We had a job to do; we did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what, if they didn’t get in, that’s a good thing ’cause their message isn’t what we want to hear.
Let’s not kid ourselves. There was real potential for violence far beyond the skirmishes that actually took place. The Boston Police did a good job of protecting public safety. But free speech took a back seat on Saturday, and I imagine we’re going to be hearing more about that in the days to come.
Getting ready to leave the Reggie Lewis Center and head down Tremont Street.
I did quite a bit of tweeting earlier today from the “Fight Supremacy” anti-racism demonstration, and here is a Storify I put together capturing what I hope are the most useful parts.
I’m heading to Boston later this morning to report on the protests for my column at WGBH News. Here is my reporter’s toolkit: unofficial press pass, business cards, notebook and $40 cash for bail — the last recommended by First Amendment lawyer Rob Bertsche, whose firm, Prince Lobel, will be on call this weekend for any journalists who find themselves in legal trouble.
My plan is to accompany the “Fight Supremacy!” counterprotesters from the Reggie Lewis Center to the Boston Common, where the white-supremacist rally is supposed to take place. I’ll try to do some live posting on Twitter right here, though it’s likely the cellular networks will be overloaded.
For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.
The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.
Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.
The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.
Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.
After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.
The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.
These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want. (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)
Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.
The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.
The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.
Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.
The public square has long since gone private. As far back as 2003, we bestowed a New England Muzzle Award upon a mall that ordered a 60-year-old customer arrested and charged with trespassing because he refused to remove his antiwar T-shirt — a T-shirt he’d bought at said mall.
These days, though, the idea that privately owned shopping centers have superseded the village common seems almost quaint. The public square has gone virtual. Unaccountable internet companies control our discourse and censor our voices for reasons that can seem both absurd and mysterious.
We live in a time in which YouTube restricts access to a pro-Israel video made by the famed Harvard law professor Alan Dershowitz. In which the Museum of Fine Arts’ Instagram account runs afoul of an anti-nudity rule that applies not just to pornography but to art. And in which the Boston Police Department proposes using sophisticated software to monitor our activities on social media — for our own good, of course. The BPD backed down, but you can be sure that won’t be the last we hear of it.
It seems somehow appropriate that on this, the 20th anniversary of the Muzzle Awards, assaults on freedom of expression are taking a technological turn. But there are still plenty of instances of old-fashioned suppression — such as a publicly funded charter school in Malden whose ban on hair extensions affects black female students almost exclusively; Maine Gov. Paul LePage, who has refused to turn over public records about his support for states seeking to discriminate against same-sex couples and transgender youth; and a New Hampshire publisher who censored information about his own newspaper’s real-estate dealings.
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 fifth 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.
YouTube: The Internet Giant Censors Videos By Alan Dershowitz And Others
Harvard Law School professor Alan Dershowitz’s staunchly pro-Israel views are well known. But if he had to rely on YouTube to spread his message, he might find himself crying in the wilderness.
Last October, Hiawatha Bray reported in The Boston Globe that educational videos featuring Dershowitz and several other speakers had been restricted by YouTube, an internet giant that, in turn, is owned by Google, an even larger internet giant. The videos were produced by Prager University, an educational service begun by Dennis Prager, a conservative radio talk-show host.
As Bray noted, none of the videos included any foul language, violence, or sexually explicit content. Nor could it be determined why they were suppressed. Had the videos somehow run afoul of Google’s notoriously opaque algorithms? Had someone flagged the content as objectionable?
Not that it was especially difficult to watch the videos. The content was blocked only for users who had turned on YouTube’s “restricted” mode, which, according to the website, “hides videos that may contain inappropriate content flagged by users and other signals.” All anyone would have to do is turn it off. Still, it sent a signal that there was something wrong with what Dershowitz and the others were saying.
In a follow-up piece for National Review, Prager wrote that 21 videos had originally been restricted, and that five had been restored. The topics included radical Islam, abortion rights, and a defense of police against charges of racism. “Obviously, … the explanation is not algorithms that catch violence and sex,” Prager wrote. “Rather, Google/YouTube doesn’t want effective (each video has at least 1 million views) conservative videos.”
He added that Dershowitz’s video “Israel’s Legal Founding” had been restored because of negative publicity. If it was, it was later blocked again — as I discovered when I tried accessing it in restricted mode recently.
Google, like Facebook, has enormous power and influence, and has become far more than a corporation with its own agenda and interests. It’s a place where we spend a significant amount of our lives. It’s long past time for Google to recognize its free-speech obligations.
Bill Evans: The BPD Commissioner’s Officers Choose Surveillance Over Liberty
In the never-ending struggle between security and liberty, it is the job of the Boston Police Department to err on the side of security. And it is our job to push back. Thus has Commissioner Bill Evans earned a Muzzle for allowing his officers to infringe on the free-expression rights of protesters.
According to The Boston Globe, this past March, members of an organization calling itself the Keep it Real 100 for Affordable Housing and Racial Justice showed up at a board meeting of the Boston Planning and Development Agency to complain about the lack of affordable housing in a development plan for the Forest Hills-Jackson Square area. Officers began video recording some of the protesters, creating what some witnesses said was an atmosphere of intimidation.
Officer Rachel Maguire, the BPD spokeswoman, compared the situation to the right that citizens have to record officers, and said such recording often takes place at large gatherings such as the Boston Marathon and outdoor demonstrations. Needless to say, though, there is a considerable power differential between police officers and citizens. Citizens recording officers simply cannot be compared to officers recording citizens. And a public meeting in City Hall is a very different matter from a huge outdoor gathering.
Fortunately, the BPD backed down from yet another attempt to monitor people exercising their right to free expression — a proposal to sift through people’s social-media activities, opposed by the ACLU of Massachusetts. But surveillance of activities protected by the First Amendment is no way to protect public safety. Evans needs to find a better solution.
Jim Konig: A Publisher Who Believes That All The News About His Newspaper Isn’t Fit To Print
A community newspaper has an obligation to be open and transparent about its operations. After all, the local paper often enjoys a near-monopoly on news. If its owners choose to suppress important information, there is virtually no other place to learn about it.
So when Roger Carroll, the executive managing editor of The Telegraph of Nashua, New Hampshire, resigned last fall, eyebrows were understandably raised. In a radio interview, Carroll told Nancy West, founder of the nonprofit news organization InDepthNH, that he quit after publisher Jim Konig ordered him to delete parts of a story about the paper’s move to new headquarters in downtown Nashua.
According to the print version of the article, The Telegraph’s new building was purchased for $650,000 and had an assessed value of $1.8 million. Those details, as well as the fact that the paper is owned by Ogden Newspapers of Wheeling, West Virginia, were removed from the online version.
Carroll said Konig told him the order to delete those facts had come from West Virginia. But Konig wins the Muzzle, as he refused an opportunity to clarify matters when reached by InDepthNH and the New Hampshire Union Leader.
“I thought this kind of censorship showed a staggering disrespect to the role of the newsroom and to the Telegraph’s readers,” Carroll told West in a follow-up interview. Reached by the Union Leader, Carroll added, “It felt like censorship — that is what it felt like.”
Konig, meanwhile, has moved on, and Carroll is now working for Vermont’s Rutland Herald. “Leaving those folks behind was very hard,” Carroll told the investigative news site VTDigger about his decision to quit his job at The Telegraph. “But at the end of the day I had to be able to look in the mirror.”
Mystic Valley Regional Charter School: Its Prohibition Against Hair Extensions Is Racially Discriminatory
A school’s dress code includes a provision that is written in seemingly neutral language, but in practice affects black students while having little impact on white students. That’s discrimination, and it’s not a difficult concept to understand.
Unless you are part of the leadership at the Mystic Valley Regional Charter Schoolin Malden, which has grudgingly, and only temporarily, suspended its ban on hair extensions under pressure from Massachusetts Attorney General Maura Healey.
The taxpayer-supported school, which serves Malden and several surrounding communities, has an extensive dress and grooming code that school officials say is aimed at preventing more affluent students from flaunting their wealth. But the families of some black female students argue that long braids, sometimes supplemented with extensions, are an expression of cultural pride.
Black students with long braids and dreads were taken to the office and inspected to see if they were wearing extensions. Punishment was meted out, including detention and suspension from activities such as athletics and the prom. White students with dyed hair were reportedly not subjected to such treatment. Despite Healey’s investigation, protests, and complaints from the ACLU and the NAACP, the school has backed down only partially and with great reluctance, displaying an unusually obtuse sense of racial insensitivity.
A letter released by the school after the trustees voted to suspend the policy read in part: “Some have asserted that our prohibition on artificial hair extensions violates a ‘cultural right,’ but that view is not supported by the courts, which distinguish between policies that affect a person’s natural ‘immutable’ characteristics and those that prohibit practices based on changeable cultural norms.”
As my “Beat the Press” colleague Callie Crossley recently wrote in criticizing Mystic Valley: “For black women, hair is a cultural flashpoint, never as simple as ‘it’s just hair.’ Those of us who wear our hair in afros, twists, locks or braids are often subject to unsolicited commentary, sometimes overtly racist.”
Free expression covers a wide variety of activities, including hair and dress. It would be bad enough if Mystic Valley’s policy were not racially discriminatory. But it is, and that makes it indefensible on any grounds.
Cardno ChemRisk: The SJC Sees Through Its Attempt To Use Libel As A Tool Of Intimidation
The libel laws are intended to give people and organizations a chance to fight back against false, defamatory statements. In the wrong hands, though, libel can be wielded by the powerful as weapon to harass critics.
Such was the situation that two environmental activists found themselves in after they wrote an unpaid article for The Huffington Post. The 2013 article, by Karen Savage, who at the time was a Boston middle-school teacher, and Cherrie Foytlin of Rayne, Louisiana, claimed that a controversial consulting company called Cardno ChemRisk had ties to the oil industry. Those ties, they said, compromised the company’s ability to conduct a study as to whether workers involved in the cleanup of the 2010 Deepwater Horizon explosion were exposed to harmful levels of hazardous airborne substances.
ChemRisk wins a Muzzle Award for filing a libel suit against the two women — something The New York Times notes that it did not do even when tough reporting on the company by The Wall Street Journal in 2005 became a storyline in the environmental thriller “Erin Brockovich.” The Times article suggested that ChemRisk was more comfortable taking on two unknown activists than the powerful Journal, although a lawyer for the company denied it.
In February of this year the Massachusetts Supreme Judicial Court threw out the lawsuit, essentially agreeing with the two women, who had invoked the state’s anti-SLAPP law (Strategic Litigation Against Public Participation), that ChemRisk had sued solely in order to silence and intimidate them. According to the website Law360, the SJC ruled that ChemRisk’s claim was “devoid of reasonable factual support or arguable basis in law.”
Despite the victory, the lawsuit may have served its purpose by warning other activists of the consequences they might face if they take the risk of speaking up.
Bill Gardner: New Hampshire’s Secretary Of State Keeps The Absurd ‘Ballot Selfie’ Ban In The News
Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.
In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?
A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.
Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.
Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.
The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”
Paul LePage: Maine’s Governor Refuses To Release Records About His Right-Wing Crusades
You’d think that Maine’s Republican governor, Paul LePage, would be proud to share information about assistance he gave to other states in their quest to squelch same-sex marriage and transgender rights. Apparently not. Because in May, the Portland firm Andrew Schmidt Law had to file a lawsuit under the state’s Freedom of Access statute following what it said was a failed six-month quest to obtain records related to LePage’s out-of-state political activism.
Also sought were records pertaining to LePage’s decision last fall to pull out of the federal government’s refugee resettlement program.
According to the Portland Press Herald, LePage supported Mississippi officials in their bid to overturn a federal judge’s ruling that public employees could not refuse marriage licenses to same-sex couples. LePage also signed on to a lawsuit filed by 10 states after the Obama administration ordered public schools to stop discriminating against transgender students with regard to bathroom and locker-room access.
LePage is a notorious homophobe. Last year The Advocate, an LGBT publication, posted some NSFW comments LePage made to a state legislator in which he defended himself against charges that he’s a racist by going off on a vicious gay-bashing rant.
As for the public records sought by Andrew Schmidt Law, Peter Mancuso, a lawyer with the firm, told the Press Herald that the governor’s office had not turned them over despite promising to do so by March. Nor did the LePage administration respond to several email requests from the paper seeking comment.
Instagram: The Museum Of Fine Arts Runs Afoul Of The Photo-Sharing App’s Ban On Nudity
YouTube is not the only internet behemoth upon whom we are bestowing a Muzzle Award. So is Instagram, the photo-sharing app owned by Facebook. As with YouTube and its parent company, Google, the Instagram example highlights the erosion of freedom that can occur when our public discourse is turned over to unaccountable corporations.
The Boston Globe’s Malcolm Gay reported in April that Instagram had removed three images of nude models posted by the Museum of Fine Arts to promote an exhibit of photographs by Imogen Cunningham. The images violated Instagram’s one-size-fits-all terms of service, which prohibit photos of female nipples. Similar cases involving the Philadelphia Museum of Art and New York’s Metropolitan Museum of Art were also reported.
“I’m stunned. These images are so subtle and beautiful and so abstract,” MFA photography curator Karen Haas told the Globe. “They’re all about shapes — about turning the body into something that’s really confounding and difficult even to read as a body.”
But though the Muzzle goes to Instagram, surely a Muzzle Jr. is in order for the Globe. Because the artwork it used to illustrate the story was itself a censored, G-rated version of Cunningham’s photos. As my “Beat the Press” colleague Emily Rooney ranted several days after the Globe’s story was published, “They ruined their own story by doing the exact same thing they were accusing Instagram of doing. It was embarrassing, I thought.”
New Haven Police Department: A Photojournalist Is Arrested And Charged Following ‘A Ten-Second Misunderstanding’
For years, police officers in New Haven have struggled with the idea that journalists and ordinary citizens have a First Amendment right to video-record and photograph their interactions with the public. In 2011 I accompanied Paul Bass, the editor and founder of the online New Haven Independent, as he covered a training session for officers following some egregious violations of citizens’ rights, which I wrote about in my book “The Wired City.”
Sadly, the New Haven Police Department still doesn’t get it. Last December, Independent reporter David Sepulveda was arrested and charged with two misdemeanors — interfering with police and third-degree trespassing — after he took photos of a pressure cooker suspected of being a bomb (it wasn’t) and didn’t vacate the scene quickly enough when ordered to do so.
“We recognize that police have legitimate concerns when setting a perimeter around a scene and urge journalists to respect those boundaries, but an arrest is extreme when less draconian remedies would have sufficed,” the Connecticut chapter of the Society of Professional Journalists said in a statement.
In an opinion piece, Bass apologized and conceded that Sepulveda, 64, should have been more responsive and polite in his dealings with the police. But there was no excuse for their subsequent actions, which, according to Bass, included confiscating Sepulveda’s camera and attempting to seize its memory card; wrongly asserting that he had walked into a blocked-off area; and claiming that they didn’t know he was a reporter even though he was wearing a press tag around his neck. As Bass wrote, the police “turned a ten-second misunderstanding into a criminal charge.” He added: “The police had reason to be angry. They didn’t have good reason to handcuff, detain, and arrest a reporter.”
The officer who arrested Sepulveda and the supervisor who seized his camera were cleared by internal-affairs investigators. And so it goes — until the next time the city’s unchastened police encounter someone with a camera and an attitude.
Peter Kilmartin: Rhode Island’s Attorney General Clashes With Governor Over Revenge Porn And Curt Schilling
So-called revenge porn — sexually explicit photos posted on the internet as a form of harassment — is a serious offense. But Rhode Island Attorney General Peter Kilmartin has taken an unserious approach to dealing with it, filing a bill in 2016 so unconstitutionally broad that it was vetoed by Gov. Gina Raimondo, a fellow Democrat. He then turned around and filed it again.
According to The Westerly Sun, Raimondo objected to Kilmartin’s proposal because it “could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, [the legislation] does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.” Kilmartin, playing to the cheap seats, responded by saying “it is a disgrace that the Governor would put the interests of Hollywood elites before that of Rhode Island victims of this horrendous crime that has lifelong impact.”
But as Steven Brown, executive director of the ACLU of Rhode Island, put it in an emailed comment, “These elites apparently include the ACLU, the RI Press Association, the New England First Amendment Coalition, and the Media Coalition, all of whom testified against his bill and in favor of hers. He would rather pass a bill that will end up providing no protection to victims because it will be struck down rather than agree to a ‘watered down’ constitutional one.”
Revenge porn is not the only issue over which Kilmartin and Raimondo have clashed. Raimondo has called for the release grand jury records involving the 38 Studios investigation, better known as the Curt Schilling debacle. Kilmartin objected, the Providence Journal reported, arguing that releasing “names and statements of cooperating witnesses” could “chill the willingness of witnesses to come forward to law enforcement in the future, particularly in cases of public corruption.”
Grand jury deliberations are traditionally kept secret. But in a friend-of-the-court brief, the ACLU of Rhode Island laid out a compelling argument for why the Schilling case should be treated differently.
“Unlike a typical grand jury investigation involving allegations of private crime by private individuals,” the brief said in part, “the investigation of 38 Studios addressed a matter of public policy of extraordinary importance that involved the decision by the state to invest $75 million in public funds. In a well-functioning democracy, the people have a need to know how the state decides to spend public funds, and this need vastly outweighs any minimal interests in secrecy present here.”
