File this under “the wheels of justice grind slowly”: The former Kansas police chief who ordered an illegal raid against a newspaper office and two private homes one year ago has been charged with felony obstruction of justice.
The single charge against former Marion Police Chief Gideon Cody alleges that he knowingly or intentionally influenced the witness to withhold information on the day of the raid of the Marion County Record and the home of its publisher or sometime within the following six days.
For those of you who have been following this case from the start, the charge pertains to a restaurant owner whose driving records were obtained by the newspaper. The records were obtained legally, and the paper never actually wrote about them, but Cody claimed the paper violated the law because of a statutory quirk. It later turned out that the Record was investigating Cody’s wrongdoing at his previous job — something that was entirely unrelated to the restaurant owner.
Last month, former Record reporter Deb Gruver reached a $235,000 settlement in her federal lawsuit against Cody, whom she accused of grabbing her cellphone and injuring her hand.
Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.
Here are a few other developments on the local news front:
In New York City, WCBS-AM is ending its 60-year run as an all-news station, a move that The New York Times reports will claim 23 jobs. The station’s owner, Audacy, will continue with an all-news format on WINS-FM. New York is also the home of WNYC-FM, a large public station devoted to news and information.
Times Media Group, a newspaper chain based in Tempe, Arizona, has gone on a rampage of cuts at four weekly papers and a semi-monthly that it acquired in Southern California recently. Thomas Corrigan, who writes the Inland Empire MediaWatch newsletter, reports that editors at three of the weeklies have been fired and that the new owner has cracked down on freelance expenses as well. Corrigan observes that the papers will “lose years of institutional and community knowledge.”
Michael Aron, regarded as the dean of New Jersey’s press corps, has died at the age of 78. Aron spent the latter part of his career as a political reporter at NJ Spotlight News, one of the projects that Ellen Clegg and I write about in our book, “What Works in Community News.”
The fallout continues from an illegal police raid on a Kansas newspaper and two private homes last August. According to The New York Times, Deb Gruver, a former reporter for the weekly Marion County Record, has reached a $235,000 settlement as part of her federal lawsuit accusing then-Police Chief Gideon Cody of grabbing her cellphone and injuring her hand.
The Associated Press reports that Gruver’s lawsuit against two other officials continues. Nor is that the only legal action under way. Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.
Among the most toxic behaviors that we often see in police officers is the tendency of some of them to overreact if they think they’re being disrespected. What they deserve, as public servants doing a difficult and dangerous job, is our cooperation. That doesn’t mean we have to like it.
Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a recent account in The New York Times, in February 2018 Riggen pulled over a driver named Gregory Bombard — twice — for giving him the finger. Bombard denied it, but then did, in fact, flip off Riggen and cursed. Bombard was arrested and charged with two counts of disorderly conduct, charges that were later dismissed.
It got worse. The Times story, by Sara Ruberg continues:
According to the lawsuit, which was filed in 2021, the police circulated Mr. Bombard’s mug shot to local news outlets after his arrest and towed his car from where he had pulled over. Lawyers representing him said that last Christmas the state police issued another citation ordering him to be arraigned on a disorderly conduct charge in connection with the 2018 episode after the dashcam footage of his arrest was circulated and the police received public pushback.
Bombard last month received a $175,000 settlement. And Riggen, who retired at the end of May, is receiving a New England Muzzle Award.
An account by Juan Vega de Soto for the nonprofit news outlet VTDigger includes some other details. After pulling Bombard over, Riggen admitted that he was probably wrong in thinking that Bombard had flipped him the bird — not that it should have mattered. Vega de Soto writes:
In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE [the Foundation for Individual Rights and Expression] made the dash cam footage of the arrest public late last year.
In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”
As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.
In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”
Bombard sued with the help of the Vermont ACLU and FIRE. As FIRE senior attorney Jay Diaz put it in a statement: “We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech.”
Now, admittedly, Bombard’s response to Riggen was not exactly the smartest thing he could have done. But it was protected by the First Amendment, and Riggen should have acted accordingly instead of punishing Bombard for failing to show him the respect his mistakenly thought he was entitled to.
On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.
Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:
There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.
Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.
Let’s count up the absurdities.
The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?
Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”
But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.
When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”
Two other points of note.
First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.
Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.
Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.
Former Mississippi Gov. Phil Bryant. Photo (cc) 2016 by Tammy Anthony Baker.
The nonprofit news organization Mississippi Today has filed an appeal with that state’s Supreme Court rather than turn over internal documents sought by former Gov. Phil Bryant, who’s suing Today over its Pulitzer Prize-winning investigation into a state welfare scandal.
It’s a high-stakes gamble: Mississippi recognizes only a very limited reporter’s privilege protecting journalists and news organizations from being ordered to identify anonymous sources and from producing documents. A lower court went along with Bryant, who argues that he is seeking evidence he needs in his attempt to prove that he was libeled by Today and its publisher, Mary Margaret White, a past guest on our “What Works” podcast. Today’s editor-in-chief, Adam Ganucheau, writes:
The Supreme Court could guarantee these critical rights for the first time in our state’s history, or it could establish a dangerous precedent for Mississippi journalists and the public at large by tossing aside an essential First Amendment protection.
As readers of Media Nation know, the U.S. Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not provide for a reporter’s privilege. Nevertheless, 49 states offer some form of privilege either through a law or a ruling by state courts. The sole exceptions are Wyoming and the federal government itself. (The latest efforts to create a federal shield law are currently stalled in the Senate.)
The reporter’s privilege in Mississippi, though, is extremely limited — so much so that Ganucheau doesn’t regard his state as having any privilege at all. The Reporters Committee for Freedom of the Press lumps Mississippi in with a group of states that have the lowest level of protection for journalism, including Idaho, Utah, Iowa, Missouri, Virginia and, sadly for us New Englanders, Massachusetts and New Hampshire.
In RCFP’s guide to the reporter’s privilege, Mississippi lawyer Hale Gregory writes that “there are no reported decisions from Mississippi’s appellate courts regarding the reporters’ privilege, qualified or otherwise,” but that several court orders by the state’s trial courts have recognized “a qualified privilege.”
Mississippi Today has emerged as a vital source of accountability journalism in our poorest state. Currently it’s partnering with The New York Times on an investigation into a county sheriff’s department that has already led to prison sentences for six deputies who tortured two Black men in their custody, and that could lead to a federal civil-rights lawsuit.
Not surprisingly, a federal appeals court has ruled against a Middleborough student who sued the school system after he was banned from wearing two T-shirts with anti-transgender messages.
According to an article by Sawyer Smook-Pollitt in Nemasket Week, Chief Judge David Barron, writing for the First Circuit Court of Appeals, ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.” John R. Ellement covered the story for The Boston Globe as well.
Earlier, Morrison lost in U.S. District Court. At this point, his only recourse would be an appeal to the U.S. Supreme Court. Given the high court’s lurch to the right, maybe his high-profile backers at the Massachusetts Family Institute, a religious-right organization, will give it a try.
As I’ve written previously, Liam Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”
This was not an easy call. At root, the First Amendment exists to protect unpopular speech, and Morrison’s T-shirts were surely unpopular among his LGBTQ classmates and their allies. On balance, though, I think school officials and the courts have gotten it right.
As Judge Barron observes, the T-shirts’ message was demeaning to trans students and dismissive of their very identity. By contrast, if a student wore a pro-transgender T-shirt, that would not represent any sort of threat or insult to non-trans students. In addition, the courts have ruled repeatedly that public school students’ First Amendment rights are limited when they are on school property. The school handbook in Middleborough bans clothing that targets “groups based on race, ethnicity, gender identity, religious affiliation or any other classification.”
For all these reasons, I’ve refrained from giving a New England Muzzle Award to Middleborough school officials, even though Morrison and his family no doubt believe they’ve been muzzled.
U.S. Sen. Dick Durbin. Photo (cc) 2018 by Kurman Communications.
You wouldn’t think the MAGA-controlled U.S. House could do much of anything on a bipartisan basis. Back in January, though, the chamber passed a bill that would enact a shield law protecting journalists from having to identify their confidential sources. Now the bill is in danger of dying in the Senate, and the Freedom of the Press Foundation is calling for action. More on that in a moment. First, though, what would the PRESS Act accomplish?
As described by Gabe Rottman, writing for the Reporters Committee for Freedom of the Press, it would protect journalists from subpoenas, court orders or search warrants unless there is reason to believe that the names of the anonymous sources being sought would help prevent a terrorist attack or identify the perpetrator of such an attack, or prevent “a threat of imminent violence, significant bodily harm, or death, including specified offenses against a minor.”
Second, the shield would protect not just professional journalists working for a recognized news organization but also anyone who “regularly gathers, prepares, collects, photographs, records, writes, edits, reports, investigates, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” In other words, solo newsletter writers, bloggers and folks who run tiny news sites would be covered.
There is no First Amendment provision for journalists seeking to protect their confidential sources. The Supreme Court saw to that in its 1972 Branzburg v. Hayes decision. But 49 states offer some of protection, sometimes referred to as “the reporter’s privilege,” either through a shield law or a ruling by its highest court (Massachusetts is in the latter category). The sole exceptions: Wyoming and the federal government.
The PRESS Act (“PRESS” stands for Protect Reporters from Exploitative State Spying) was passed unanimously by the House in January. But according to a press release from the Freedom of the Press Foundation, the bill is in danger of falling victim to inaction. The nonprofit organization has called on Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C., the chair and ranking member of the Senate Judiciary Committee, to move the bill forward so that it can come to a vote, calling it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times.”
What follows is the full text of the foundation’s press release.
Sen. Durbin should advance the PRESS Act before time runs out
NEW YORK, May 30, 2024 — Sen. Dick Durbin has a rare chance to strengthen freedom of the press right now by advancing the bipartisan PRESS Act, a bill to protect journalist-source confidentiality at the federal level. Freedom of the Press Foundation (FPF) has called it the “strongest shield bill we’ve ever seen” and “the most important press freedom bill in modern times.”
But Durbin needs to act quickly. Today, a coalition of 123 civil liberties and journalism organizations and individual law professors and media lawyers wrote to Durbin, who chairs the Senate Judiciary Committee, and ranking member Sen. Lindsey Graham, urging them to schedule a markup of the PRESS Act right away.
Among the signers is acclaimed First Amendment lawyer Floyd Abrams, who said that “The PRESS Act has long been needed and the time to enact it is now.”
Another noteworthy endorser is the Marion County Record. Last year, a baseless and retaliatory police raid of the Record’s newsroom and the home of its publisher, Eric Meyer, made national headlines. Meyer was an associate professor of journalism and associate dean of the College of Media at University of Illinois Urbana-Champaign for over 25 years.
Meyer said the Record signed the letter because:
As last summer’s raid on the Marion County Record proved, freedom of expression faces unprecedented challenges from unscrupulous people willing to weaponize the justice system to bully and retaliate against those attempting to report truth. Existing remedies might be fine for huge media organizations, but community journalists and people like the students I used to teach at the University of Illinois shouldn’t have their rights be dependent on whether they can afford to hire massive legal teams. Clear protections like those in the PRESS Act would block future attempts to trample on the First Amendment in ways that once were unfathomable to all who support democracy.
Other organizational signers include the American Civil Liberties Union, FPF, Illinois Press Association, and Chicago Headline Club.
Durbin and Graham are already co-sponsors of the legislation, with Durbin announcing his support for the bill in the Chicago Sun-Times in 2022. But, as the letter explains, if the Senate Judiciary Committee does not review the bill in the next couple of weeks, the clock could run out.
FPF director of advocacy and Illinois resident Seth Stern said:
Illinois news outlets are giving everything they’ve got to make sure that people are informed about what’s happening in their communities.
Yet journalists and whistleblowers in Illinois remain vulnerable to invasive subpoenas demanding that reporters burn their sources. Our federal appellate court is one of the few that doesn’t recognize a journalist-source privilege. That means everyone from prosecutors to private plaintiffs can haul reporters into federal court and demand to know who they’re talking to and what information they have. Whistleblowers don’t talk to journalists when they’re afraid of being outed, and the result is that official misconduct goes unchecked and important stories go untold.
Sen. Durbin can change that. He already supports the PRESS Act and should advance it through the Judiciary Committee so it can become the law of the land.
“The Senate should not squander this rare opportunity to defend the First Amendment and protect press freedom through bipartisan legislation. The PRESS Act is bipartisan, commonsense legislation that would protect journalists, sources, and Americans’ right to know,” said FPF Executive Director Trevor Timm, a Springfield, Illinois native.
Clayton Weimers, executive director of Reporters Without Borders USA and a Chicago native, explained in a letter to the Sun-Times yesterday that Durbin can “help reverse the decline of American press freedom” by advancing the PRESS Act.
Illinoisian actor and activist John Cusack, a founding board member of FPF, has also written op-eds and letters in support of the act.
In addition to protecting journalists from subpoenas, the PRESS Act would shield them from government surveillance through their phone and email providers. It contains commonsense exceptions for emergencies: for example, terrorism and threats of imminent violence.
The bill was the subject of a recent congressional hearing featuring testimony from former CBS News and Fox News journalist Catherine Herridge, who has been held in contempt of court for refusing to reveal sources. “If confidential sources are not protected, I fear investigative journalism is dead,” she said during her testimony.
Massachusetts Statehouse. Photo (cc) 2015 by Upstateherd.
The murder trial of Karen Read is, without question, one of the strangest spectacles we’ve seen in Massachusetts for a long time.
Read has been charged with driving over her boyfriend, former Boston police officer John O’Keefe, and leaving him to die in a snowbank. Read counters that she’s being framed — that, in fact, O’Keefe was beaten up, bitten by a dog and dragged outside. Adding to all of this is a murky federal investigation of the Norfolk County district attorney’s office and the involvement of Aiden Kearney, the Turtleboy blogger who has taken up Read’s cause and who’s been charged with witness intimidation and illegal wiretapping.
In one sense, though, it’s a very familiar story. Crucially important evidence is being withheld from the public because of our state’s restrictive public records laws. As Sean Cotter reports in The Boston Globe, autopsy reports are not considered public records in Massachusetts. We’re not unique in that regard. Citing information from the Reporters Committee for Freedom of the Press, Cotter writes that among the very few states where autopsy records are considered public are Alabama, Colorado, California and Florida.
“If the public cannot see the documents that judges rely on in the course of making decisions, the public cannot make decisions on whether the judge’s decisions are correct,” First Amendment lawyer Jeffrey Pyle told the Globe.
The Norfolk DA’s office turned down the Globe’s public records request, with spokesman David Traub telling the paper, “The examination and cross-examination of the medical examiner will be where you get your answers.”
Massachusetts has long had a reputation for being among the worst states with regard to open government. About a decade ago, the Center for Public Integrity gave the state a D-plus in an overall accountability score as well as an F for public access to information. The state’s public records law was strengthened in 2016, but it remains woefully inadequate.
So let’s give a New England Muzzle Award to the Massachusetts legislature for failing to take any meaningful action to ensure that the public’s business will be conducted in public. The autopsy report on Officer O’Keefe’s death should be made public — and that’s just a small part of the much larger problem that our elected officials would rather operate in the dark than let the light shine in.
Eric Meyer speaks with reporters in August 2023. Photo (cc) 2023 by Sherman Smith/Kansas Reflector.
Obviously I should have waited before hitting “publish” on Monday’s item about the latest lawsuit to be filed regarding the illegal police raid last summer against the Marion County Record in rural Kansas. Because that turned out to be just a preliminary to the main event.
Publisher and editor Eric Meyer has been conspicuous by his absence in the the various legal maneuverings that have been playing out in the intervening months. Well, that changed big-time on Monday, when Meyer and the paper itself filed a First Amendment lawsuit in federal court. Interestingly, the principal defendant is not the former police chief, Gideon Cody, although he’s certainly among them. Rather, it’s the former mayor, David Mayfield.
The Record’s own story is trapped behind a paywall, but the nonprofit Kansas Reflector has published an in-depth report that includes the new developments as well as the relevant background. The most interesting twist is the inclusion of Mayfield, who, according to the paper’s lawsuit, ordered Cody to conduct an illegal raid against the newspaper over the paper’s handling of driving records, which were publicly available online but could only be used for certain restricted purposes. Cody met with Marion County Sheriff Jeff Soyez, the lawsuit charges, and Soyez agreed to take part in “their illicit plan to take down the Marion County Record.”
That raid, conducted against the newspaper’s offices, Meyer’s home and the home of city council member Ruth Herbel, has now resulted in a total of four lawsuits, with more promised. Among other things, Meyer’s 98-year-old mother, Joan Meyer, who was home at the time that police burst in looking for documents, died the next day after a sleepless, stress-filled night.
The purported reason for the raid has always seemed like a pretext. We learned later on, for instance, that the Record was looking into misconduct by Cody at his previous job. And now we know that the Record had been harshly critical of Mayfield, too. The story in the Reflector, by Sherman Smith, includes this choice tidbit:
The federal lawsuit says Eric Meyer seeks justice “to deter the next crazed cop from threatening democracy the way Chief Cody did when he hauled away the newspaper’s computers and its reporters’ cell phones in an ill-fated attempt to silence the press.”
Mayfield, a former Kansas Highway Patrol trooper and Marion police chief who works part-time for the sheriff, wanted to punish Eric Meyer and Councilwoman Ruth Herbel for their criticism of his actions as mayor, according to the lawsuit. In editorials, Eric Meyer referred to Mayfield as a dictator, bully and liar. Mayfield had tried and failed to remove Herbel from the city council through a recall petition in January 2023.
There’s this as well: “On July 25, just 17 days before the raid, David Mayfield wrote on his personal Facebook page: ‘The real villains in America aren’t Black people. They aren’t white people. They aren’t Asians. They aren’t Latinos. They aren’t women. They aren’t gays. They are the radical ‘journalists,’ ‘teachers’ & ‘professors’ who do nothing but sow division between the American people.’”
The raid was almost certainly a violation of the federal Privacy Protection Act of 1980, which requires authorities to obtain a subpoena — not just a search warrant — when seizing documents from news organizations.
The defendants named in Meyer’s suit are the City of Marion; former Marion Mayor Mayfield; former Police Chief Cody; Acting Police Chief Zach Hudlin; the Board of County Commissioners for the County of Marion; Marion County Sheriff Soyez; and Marion County Detective Aaron Christner.
Meyer is reportedly seeking more than $5 million for the wrongful death of his mother — compensation that will be sought in a subsequent claim. As for what would happen to local finances if he wins, Meyer said:
The last thing we want is to bankrupt the city or county, but we have a duty to democracy and to countless news organizations and citizens nationwide to challenge such malicious and wanton violations of the First and Fourth Amendments and federal laws limiting newsroom searches. If we prevail, we anticipate donating any punitive damages to community projects and causes supporting cherished traditions of freedom.
A third employee of a weekly newspaper in Kansas has joined a federal suit against a local police department over an illegal raid conducted at the newspaper’s office and the publisher’s and the vice mayor’s homes, according to The Associated Press. Cheri Bentz, who was the office manager at the Marion County Record, claims she was illegally detained and questioned, and that her cellphone was taken from her as well.
The case set off a First Amendment fury last summer after a home security camera captured the paper’s 98-year-old co-owner, Joan Meyer, berating the officers who had invaded the home she shared with her son, publisher Eric Meyer. Joan Meyer collapsed and died the next day following a sleepless, stress-filled night.
The raid led to the resignation of Police Chief Gideon Cody, who initially defended the action. Despite the official line that the raid was linked to a convoluted situation involving private driving records, it turned out that the Record was investigating possible wrongdoing by Cody at his previous job.
Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a 
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