In Marblehead, a number of teachers and other school staff members recently showed up at a school committee meeting to complain about public records requests filed by a nonprofit news organization that covers the town. In Waltham, the city solicitor issued what amounted to a pre-election gag order, advising city officials who were running for re-election that if they participated in candidates forums they should not address pending municipal business. These two attempts to shut down discussion of important community issues have earned the perps our latest New England Muzzle Awards (see explanation here).
First, let’s take a look at what’s going on in Marblehead. According to Ryan Vermette of the Marblehead Weekly News, the co-presidents of the teachers union, the Marblehead Education Association, said at a school committee meeting that public records requests submitted by Marblehead Current reporter Leigh Blander were costing the town money and creating a stressful situation for their members. Vermette’s article begins:
The library at Marblehead High School was standing room only at the start of the School Committee’s meeting last Thursday night as dozens of district staff stood with committee members against what they alleged was an excessive amount of Freedom of Information (FOIA) requests from a local newspaper.
“Not only does this waste significant time and resources for the district, but it causes significant stress for our educators, who become the subject of these investigations, and their reputations come under attack,” Vermette quoted co-president Jonathan Heller as saying. “While the number of incidents is relatively small to date, the threat they represent is apparent.” The other co-president, Sally Shevory, was not quoted in the story.
Now. for some background, because this is a little complicated. The for-profit Marblehead Weekly News, published by The Daily Item of neighboring Lynn, is one of three independent news outlets covering the town. The Marblehead Current, where Blander works, is a nonprofit. The third, Marblehead Beacon, is a for-profit; oddly enough, Jenn Schaeffner, a founder, editor and reporter for the Beacon is also a member of the school committee. Beacon articles about the school system are appended with this: “She [Schaeffner] is recusing herself from Marblehead Beacon’s coverage of the School Committee and anything pertaining to Marblehead Public Schools.” As best as I could tell, the Beacon has made no mention of the public records issue.
Marblehead has been beset by several controversial issues involving the school system recently, including a heavily scrutinized statement by the superintendent about the war between Israel and Hamas; a bullying investigation involving a former high school soccer coach; and possible disciplinary issues involving a former superintendent. If you’d like, you can read all the details in a Current editorial responding to the public records matter. What’s relevant is that the Current is being called out by union leaders and school officials for trying to hold them to account through their journalism. As Blander said in a statement to the Weekly News: “In pursuit of our mission to foster democratic participation by informing our readers about important issues, including those that impact students and their families, the Current seeks to make responsible use of the public records laws.”
What’s more, there is no evidence that the Current has abused the public records law by filing an inordinate number of requests. According to the editorial, “Since our launch in June 2022, we have filed 15 public records requests, 14 of which have been directed to the School Department.” Eleven of those were related to the departure of the previous superintendent. To be fair, school officials determined that a recent request for records about complaints against teachers would have required poring over nearly 477,000 emails, and that the Current would be assessed $50,000. But as the editorial put it: “As should have been obvious, the Current was not seeking to commission such a voluminous and intrusive search. We agree that would not be the best use of school employees’ time (or our money). Moving forward, if we inadvertently submit overly broad records requests to record keepers, we hope our partners in public service would simply call us and ask, ‘What are you really looking for? Can we find a way to respond without overburdening our staff?'” The editorial concluded:
Our school officials have to realize, though, that if what they are asking is essentially “stop asking so many questions,” we view that prescription as a non-starter. While we will take better care to make our requests more targeted and less burdensome, we will continue to use the public records law to seek answers we believe the public deserves.
The public records law exists so that members of the public — and the press, acting as representatives of the public — can hold government accountable. This particular Muzzle Award goes not to any particular individual but, rather, to union officials and the school committee as a whole for promoting an atmosphere suggesting that they know best, and that the prying eyes of the press are not welcome.
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In Waltham, meanwhile, City Solicitor John Cervone has earned a Muzzle for issuing a ruling calling it “potentially problematic” if elected members of the city council who were participating in candidates forums addressed issues that were currently under consideration. This is an absurd restriction, since a challenger would be free to discuss such issues freely while the incumbent would be forced to sit there and say nothing except “upon the advice of counsel blah blah blah.” As a Boston Globe editorial put it:
The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.
Justin Silverman, a lawyer who’s the executive director of the New England First Amendment Association, was quoted as saying that Cervone’s opinion appeared to be based on a misunderstanding of the state’s open meeting law. “If there isn’t a quorum present at public events, then it’s not a violation under the open meeting law,” Silverman said. No doubt — and yet it’s more than theoretically possible that a quorum of council members could be present at a candidates forum if they were all running for re-election.
A mayoral candidate, City Councilor Jonathan Paz, said Cervone’s opinion created a “chilling effect,” adding, “We as candidates are supposed to be candid, we’re supposed to be transparent about our values and our positions on certain matters.” And wouldn’t you know it: Paz lost his challenge to incumbent Mayor Jeannette McCarthy by a wide margin. No doubt it’s a stretch to say that the gag order hurt Paz’s campaign — but surely it didn’t help.
The Globe editorial notes that a similar issue arose in Newton four years ago. It’s time to clarify the law so that muncipal lawyers in other communities don’t travel down a similar censorious path.
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Now, you may ask why the police department in this Western Massachusetts town isn’t being awarded a Muzzle. The reason is that it’s not clear they did anything wrong. The person who called the police department sent images that they claimed were from an obscene book. Obscenity, a tiny subset of indecent material, is actually illegal. It can be hard to define (the late Supreme Court Justice Potter Stewart once memorably said, “I know it when I see it”), but you can imagine that it’s pretty bad given that nearly all indecency is protected by the First Amendment. To be clear: “Gender Queer” doesn’t come within a mile of violating any obscenity laws. But Great Barrington Police Chief Paul Storti told Adam Reilly of GBH News that his officers were obliged to respond to what may have been a legitimate complaint. Reilly quoted Storti as saying:
A federal grand jury has 