First Amendment – Page 20

Muzzle Awards follow-up: Two victories for free speech

Among the New England Muzzle Award recipients I recognized last month at WGBHNews.org were Massachusetts Attorney General Maura Healey, for backing a ridiculous 70-year-old state law that banned political lying, and New Hampshire State Rep. Timothy Horrigan, a leader in the effort to outlaw the scourge of so-called ballot selfies.

This month, the courts agreed on both fronts.

According to Zack Huffman of Courthouse News Service, the Massachusetts Supreme Judicial Court struck down the anti-lying statute, with Justice Robert Cordy writing:

We conclude that [the statute] cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system.

It is now safe for the presidential candidates to campaign in Massachusetts.

In New Hampshire, U.S. District Judge Paul Barbadoro ruled that the ban on posting photos of a marked ballot could not be justified even though it was supposedly designed to eliminate bribery, with the selfie providing the proof needed that the person taking the bribe had voted as instructed.

The problem, Barbadoro noted, was that such fraud had not actually taken place in at least the past 100 years. In addition, Barbadoro ruled that the law “deprives voters of one of their most powerful means of letting the world know how they voted,” according to an account of the decision by Jeremy Blackman of the Concord Monitor.

The moral of these stories: Do not mess with the Muzzles.

WGBH News illustration by Brendan Lynch.

Also published at WGBHNews.org.

Guest commentary: Reform public-records law now

The following statement was released Monday by the Massachusetts Freedom of Information Alliance.

The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.

Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.

MassFOIA commended the governor’s action but simultaneously called for legislative reform.

“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”

“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”

Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.

“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”

“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.

The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.

In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.

The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.

Specifically, the legislation would:

Promote access to records in electronic form.
Direct agencies to assign a “records access officer” to streamline responses to public records requests.
Lower costs for requesters and limit charges for redacting documents to withhold information.
Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
Extend the time for compliance from 10 to 15 days.
Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.

Let’s keep the heat on for public-records reform

In case you missed it, Todd Wallack has a tremendous article in Sunday’s Boston Globe on our broken public-records system in Massachusetts.

Wallack begins with a killer anecdote: a $2.7 million price tag placed on Breathlyzer records a lawyer was seeking from the State Police. The lawyer, Thomas Workman of Taunton, says that other states charged him anywhere between nothing and $75.

“I was more disappointed than surprised,” Workman is quoted as saying. “I do work across the country, and I have more trouble trying to get information in Massachusetts than other places.” And oh, by the way: he never got the records he was seeking.

Right now is when you can make a difference, as I noted in a blog post reporting that the Massachusetts Municipal Association (MMA) is trying to derail reform. Rather than sending my legislators emails, I posted on their public Facebook pages. State Rep. Sean Garballey, D-Arlington, responded by telling me that he’s a co-sponsor of legislation that would significantly improve the law. I haven’t yet heard from state Sen. Pat Jehlen, D-Somerville, but will let you know if and when I do.

And this just in: Bob Ambrogi, a media lawyer who’s executive director of the Massachusetts Newspaper Publishers Association, sent out an email a few minutes ago warning that the MMA may have already succeeded, as a House session to vote on the reform legislation — now House 3665 — has been canceled. Let’s keep pushing. Ambrogi writes that “the bill may now be effectively killed.”

Not yet. Let’s keep pushing. Not sure who’s representing you on Beacon Hill? Just click here.

Cities and towns seek to derail public-records reform

A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.

On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.

Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.

The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

Hi Folks,

It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.

As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead. In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.

So, please:

1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]

2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.

3) Keep your eyes open for updated talking points over the weekend.

Thanks for your support of this critical issue!

Best,

Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition

Presenting the 18th annual New England Muzzle Awards

From fast-food chicken chain Chick-fil-A to Massachusetts Attorney General Maura Healey, everyone, it seems, has got a problem with free speech.

Please have a look at the 18th edition of the New England Muzzle Awards — launched in 1998 at the late, great Boston Phoenix and now hosted exclusively by WGBHNews.org. The Campus Muzzles, as always, are helmed by civil-liberties lawyer Harvey Silverglate.

Still more on The Berkshire Eagle and the racist column

The fallout from The Berkshire Eagle’s decision to publish a racist column by “conservative activist” Steven Nikitas continues. Today The Boston Globe weighs in with a story that is currently ranked second among the paper’s top trending articles. (My earlier posts, with links to Nikitas’ column and editor Kevin Moran’s response, are here and here.)

The story, by Callum Borchers (a former student of mine), includes a misguided interpretation of the First Amendment by a journalist and blogger named Dan Valenti:

Dan Valenti, an adjunct professor of journalism at Berkshire Community College, said the Eagle made “absolutely the right call” when it chose to print the Nikitas column. If anything should have been withheld, it was Moran’s defense, which Valenti contended was unnecessary.

“The Eagle had a duty to publish it to start this very debate that has followed,” said Valenti, who runs a news and commentary blog called Planet Valenti. “We have to decide in this case whether we believe in the First Amendment or we don’t.”

The first of these two paragraphs represents Valenti’s opinion, and though I strongly disagree with him, he’s welcome to it. But the second paragraph is just plain wrong. All of us enjoy the protections of the First Amendment — including The Berkshire Eagle, which had an absolute right under the First Amendment to publish Nikitas’ column, reject it or (my preferred option) use it as the basis for reporting on racism in the community.

Following Valenti’s logic, I shouldn’t be wasting my time on this blog post — I should be emailing Andrew Rosenthal, the editorial-page editor of The New York Times, demanding my First Amendment right to a regular column. Once a week would be fine; I like my day job and wouldn’t want to have to give it up.

Valenti expounds on his views of the First Amendment at some length in this recent post on the Confederate flag. As you might guess, he believes its display is protected by the First Amendment. And it is! Anyone can fly it on his or her private property. And everyone has a First Amendment right to urge the state government of South Carolina to remove it (or not) from public display. (For some reason Valenti is also very excited about the difference between various types of Confederate flags.)

By the way, Eagle editor Kevin Moran, whose column defending his decision to publish Nikitas’ column has been controversial in its own right, has been a busy guy lately. Anne Galloway of the nonprofit news site VT Digger reports that New England Newspapers Inc. — part of the incredible shrinking Digital First chain — laid off 10 editorial employees last Friday. Among the papers affected were the Eagle and Vermont’s Brattleboro Reformer, Bennington Banner and Manchester Journal. Moran is regional vice president of the papers.

No snark. Though I disagree with Moran’s decision to publish Nikitas’ column, his explanation shows that he did so with the best of intentions. And I’m sure he’s devastated by the cuts at these once-thriving newspapers.

More on The Berkshire Eagle and the racist column

Dan Glaun of MassLive.com follows up on The Berkshire Eagle’s decision to publish a racist screed by Pittsfield-based “conservative activist” Steven Nikitas. (My earlier post.)

Jim Bronson, chair of the Berkshire County Republican Association, which sponsors the “Right from the Berkshires” series of which Nikitas’ column was a part, concedes to Glaun that Nikitas’ language was “in artful” but denies that the piece was racist — and says he plans to respond to Eagle editor Kevin Moran’s criticism of the group in its next column.

Bronson adds that he read Nikitas’ column before it was submitted to the Eagle, but says he doesn’t know whether Nikitas is a member of his organization. Well, if Bronson doesn’t know, who would?

Then there’s this:

Bill Everhart, the Eagle’s editorial page editor, said that though he was not surprised by the outrage, he did not expect so much of it to be directed at the paper itself. Some critics, he said, may be unaware of the Eagle’s long history of progressivism and civil rights advocacy, and of its editorial board’s disagreement with Nikitas’ views.

Meanwhile, a site called Talking New Media publishes a commentary by D.B. Hubbard defending the Eagle’s decision to publish Nikitas’ column under the snarky headline “Berkshire Eagle editor explains to readers why papers print opinion pieces they may not agree with.”

Hubbard quotes a comment I posted on the Eagle’s website without identifying me and mistakenly writes that comments like mine led editor Kevin Moran to write his response. In fact, I posted my comment after Moran’s column was published, a tidbit easily gleaned by checking out the time stamps.

Berkshire Eagle publishes, defends a racist column

See this follow-up post.

The venerable Berkshire Eagle of Pittsfield, founded in the 1890s and winner of the 1973 Pulitzer Prize for editorial writing, recently published a racist column by a “conservative activist” named Steven Nikitas. After outraged readers complained, editor Kevin Moran responded in a column of his own that though he vehemently disagreed with Nikitas’ screed, he considered it well worth publishing. Moran wrote:

Views and opinions — whether they be considered by some, most or all people to be ignorant or brilliant or somewhere in between — tell us a lot about the community in which we live, work, go to school, vote, debate, worship, pay taxes, make choices and decisions, etc.

That’s true. And a community paper like the Eagle should provide a public forum — to act as “a town square,” as Moran puts it. But it should also have standards for what it chooses to publish, and that’s where I think the Eagle blew it. Presumably Moran would not publish a column calling on white residents to burn crosses in order to drive their African-American neighbors out of the area. And no, Nikitas’ column isn’t as bad as that. But if you read it, you will see that it’s bad enough. Here is how Nikitas begins:

After the burning and looting in Baltimore and Ferguson we are seeing endless media hand-wringing that somehow “we” must all do something more to help black America. And “we” means white people, taxpayers, businesses, the criminal justice system, the universities and the government. But blacks must now pull themselves up. “We” have done far too much already with tens of trillions in handouts in the last 50 years, and it has backfired badly.

Conservatives and Republicans have offered sure-fire solutions for black America and they have been rejected repeatedly. Our advice has been for African-Americans to discard the leadership of the Democrat party and charlatans like Al Sharpton. After all, far-left liberalism has obviously failed. The proof is everywhere.

Conservatives have recommended over and over that blacks reform their culture from top to bottom by respecting marriage and the family and the law, returning to their churches, embracing education and hard work, avoiding violence and debased rap music, speaking clearly, shunning drugs and profanity, and pulling up their pants. And to stop blaming all of their problems on everyone else. That is immature, cowardly and counterproductive.

What respectable business owner would hire a young black male from the “hood” who won’t even show up for work? What successful enterprise is going to establish itself in crime-ridden inner cities? Isn’t looting and burning self-defeating?

And so it goes, for 750 words in total.

A few observations.

First, if your instinct is to argue that Nikitas has a First Amendment right to his opinion, my answer is yes, he certainly does. He should get a blog. The Eagle is not the government. It is a newspaper, and it has a First Amendment right to choose what to publish and what to reject. The Eagle has risked its brand and reputation for the sake of providing a platform for a racist screed.

The New Haven Independent, a nonprofit community news site that is the subject of my book “The Wired City,” offers a useful counterview: it screens comments before they are posted, and won’t publish those it considers racist. The policy begins: “Yes we do censor reader comments. We’ll continue to.” And these are comments, mind you, not full-blown columns.

Second, since we began talking about this on Twitter and Facebook Sunday (here’s the public Facebook link, where you’ll find a lively discussion), I’ve seen several people argue that the Eagle was providing a service by calling attention to a racist in the its midst. I find that argument ridiculous. You call attention to racism with reporting, not by providing a platform to a racist. Besides, racists are not particularly exotic; you can find them everywhere.

Third, this is a challenge for the Massachusetts Republican Party because, as Moran explains, Nikitas’ column is part of a regular series called “Right from the Berkshires” produced by members of the Berkshire County Republican Association. Will that group disavow Nikitas’ views? If not, will the state party disavow the regional group? I’ve already heard from one Republican activist who believes the state party should order the Berkshire group to stop using the party’s name.

I have a feeling that there’s going to be more to come. It’s already starting to circulate nationally — after I found out about it, I discovered that Talking Points Memo was already on it. It will be interesting to see where this goes from here.

Journalists, advocates back public-records reform

Journalists, political figures and others testified on Beacon Hill Tuesday in favor of legislation that would strengthen the state’s public-records law. Joshua Miller covers the story for The Boston Globe. In March, the School of Journalism faculty at Northeastern University called for public records reform. Below is a press release on Tuesday’s hearing from the New England First Amendment Coalition.

The New England First Amendment Coalition testified Tuesday in support of legislation that would improve access to public records in Massachusetts. Justin Silverman, NEFAC’s executive director, spoke to a state legislative committee on behalf of the coalition, describing a lack of access to records and a strong need for reform.

“The ability to gather news and inform communities, to understand government and engage with elected leaders, is essential to the democratic process,” Silverman said. “Yet in my role as executive director I regularly speak with journalists and community members from throughout the state who are frustrated at the inability to obtain information about their government, information that is public by law but in reality is unobtainable and essentially secret.”

The Joint Committee on State Administration and Regulatory Oversight provided the hearing to allow testimony on House Bill 2772 and Senate Bill 1676. The legislation would eliminate technological and administrative barriers to the enforcement of the public records statute. It would also update the law to reflect advances in technology, require state agencies to have a “point person” to handle records requests, reduce fees for obtaining public records, and provide attorneys’ fees when agencies unlawfully block access to public information.

“With this legislation, for example, the concerned father who is getting the runaround from school officials over policies affecting his children will have a designated point-person to help fulfill his request,” Silverman said. “That same parent won’t be charged hundreds of dollars in copying costs when electronic files of those policies exist. The journalist from a small suburban newspaper who successfully appealed a denial of records but still hasn’t received those records can use the attorneys’ fees provision to help find a lawyer to litigate on his behalf.”

NEFAC’s full testimony can be read here. More information on the legislation and the coalition’s work as a leading member of the Massachusetts Freedom of Information Alliance — a group formed specifically to advocate for public records reform — can be read here.

Arrest records and mug shots are not secret under state law

By Jeffrey J. Pyle

Thanks to The Boston Globe’s Todd Wallack, we learned last week that the supervisor of records, charged with enforcing the Massachusetts public records law, has permitted police departments withhold arrest reports and mug shots from the public in their “discretion.” Unsurprisingly, police departments have exercised that “discretion” to shield the identities of police officers arrested for drunken driving while publicizing the arrests of other Massachusetts residents for the same crime.

Yesterday, Secretary of State William Galvin took to Jim Braude’s “Greater Boston” show on WGBH-TV (Channel 2) to defend the rulings. He pointed out that he had previously ruled that arrest reports to be public, but said he had to back down because another agency, the Department of Criminal Justice Information Systems (DCJIS), told him the records are secret under the “criminal offender record information” (CORI) statute. Former attorney general Martha Coakley shared that view, Galvin said, and the new attorney general, Maura Healey, has tentatively agreed.

But are they correct? Does the law allow the police officers to decide which arrest reports do and do not get released? The answer, thankfully, is no.

First some quick background. The public records law creates a presumption that all government records are public. Only if a specific, listed exemption applies can the government withhold documents, and those exemptions are supposed to be construed narrowly. Galvin relies on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” here, the CORI law. The CORI law does impose certain limits on the disclosure of “criminal offender record information,” but it limits that term to information “recorded as the result of the initiation of criminal proceedings and any consequent proceedings related thereto.”

The word “initiation” is important. As late as 2010, Galvin’s office held the commonsense view that a “criminal proceeding” is initiated with the filing of a criminal complaint. Arrest reports and mug shots are generated before criminal complaints are filed, so they’re presumptively public. But in 2011, the DCJIS (which administers the state’s CORI database) told Galvin it believed “initiation of criminal proceedings” means “the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court.” That necessarily precedes arrest and booking, so all arrest reports and mug shots are covered by CORI. This “interpretation” is now contained in a DCJIS regulation. Another regulation says that police can release CORI information surrounding an investigation if they think it’s appropriate to do so.

In the common parlance, however, “criminal proceedings” occur in court, and they begin with the filing of a criminal charge. We don’t typically think of an arrest without charges as involving a “proceeding.” Galvin seems to agree — his office’s rulings have said only that DCJIS believes “initiation” occurs earlier — but he has thrown up his hands and deferred to this odd “interpretation” of the CORI statute.

The thing is, Galvin isn’t bound by what DCJIS says. The public records law says that the supervisor of records is entitled to determine “whether the record requested is public.” The DCJIS’s regulation adopting this view is irrelevant, too, because as noted above, the public records law only exempts documents “specifically or by necessary implication exempted from disclosure by statute.” The Supreme Judicial Court ruled in 1999 that the “statutory” exemption doesn’t extend to mere regulatory enactments “promulgated under statutory authority,” even “in close cooperation with the Legislature.” Despite this ruling, just Wednesday, Galvin’s office again refused to order state police officer mug shots to Wallack on the ground that “[b]y regulation,” — not statute — they are exempt CORI documents.

Wallack’s reporting has led us to a momentous Sunshine Week in Massachusetts. We’ve seen unusual, coordinated editorials in major Massachusetts newspapers condemning the rulings, a letter published in the Globe, the Boston Herald and GateHouse Media newspapers (including The Patriot Ledger of Quincy and The Herald News of Fall River) signed by members of the Northeastern Journalism School faculty, and extensive coverage on the normally neglected subject of government transparency.

To his credit, Galvin is calling for reforms to the public records law, and Attorney General Healey has vowed to work with his office to strengthen transparency. Reforms are sorely needed, especially to require shifting of attorneys’ fees if a requester successfully sues. But in the meantime, Galvin can and should reconsider his misguided rulings on arrest records.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.