If you think the public is entitled to know about the security arrangements (or lack thereof) for 15-year-old murder suspect Philip Chism, then you should thank The Salem News.
Chism, charged with murdering Danvers High School teacher Colleen Ritzer, recently attacked a female youth worker at a detention center in Dorchester. The News went to court and asked that documents related to the case be released.
Today the News’ court reporter, Julie Manganis, writes that prosecutor Kate MacDougall had expressed concerns ahead of time that Chism should not be left alone with female staff. We also learn that Chism allegedly attacked the youth worker with a pencil, then “choked and beat her about the head.”
Even more alarming, MacDougall recently raised concerns about serious security lapses at the state’s Worcester Recovery Center and Hospital, where Chism is now being held.
This is important public-interest journalism, and it wouldn’t be possible if the News hadn’t been willing to devote legal resources to arguing for the release of the documents. The First Amendment requires that court proceedings be open to all. Good for the News, and good for Superior Court Judge Howard Whitehead, who ordered that the information be made public.
A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.
Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”
It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.
The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.
If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).
But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.
And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.
Once again, the Obama White House has demonstrated its contempt for journalism and other forms of independent inquiry.
As we should all know by now, journalists do not have a First Amendment right to protect their anonymous sources. Following the same principle, academic researchers have no constitutional protection if they wish to keep secret the identities of people who provide them with evidence about serious crimes.
Thus it should be no surprise that U.S. District Judge William Young last year ordered Boston College to turn over parts of the Belfast Tapes, an oral-history project involving members of the Irish Republican Army. Those tapes led to the arrest Wednesday of Sinn Féin leader Gerry Adams, who has been accused of involvement in the notorious 1972 murder of an innocent woman named Jean McConville. (Adams denies the charges.)
The struggle for Irish independence was a decades-long guerrilla war. All sides, including the British military, conducted themselves shamefully. When seeking a resolution to such horrors, the parties generally agree that reconciliation requires them to overlook acts that would never be tolerated in normal times. Nelson Mandela’s magnanimity in South Africa is the best-known example, but there are many others.
But the British government leaned on the White House, and Attorney General Eric Holder subpoenaed the tapes. There was little either BC or the courts could have done about it once Obama and Holder made up their minds to go along with British demands rather than stand up for free academic inquiry. As former lieutenant governor (and former BC trustee) Tom O’Neill puts it:
In the Boston College case, our “special relationship’’ with Britain is raising serious and troubling questions: Are we abridging academic freedom in ways that will prevent participants in major international issues from stepping forward with their stories? Is the British demand for documents, and its search for alleged wrongdoing, driven as much by the politics of Ireland today as it is by the search for justice for past crimes? And why, when both sides in the Troubles were guilty of so much wrongdoing, is the British prosecution seemingly intent on only pursuing crimes allegedly committed by only one side?
As the journalist Ed Moloney, a leader of the Belfast Tapes project, tells The Boston Globe, “The damage is done. The whole process of conducting academic research in the United States of America on sensitive subjects with confidential sources has been dealt a death blow by the Obama Department of Justice.”
Finally, I should note that the legal case involving the Belfast Tapes has been enormously complex and marked by enmity between Moloney and Boston College officials. If you would like to learn more, Beth McMurtrie wrote a long piece earlier this year for The Chronicle of Higher Education.
Mark Steyn is one of my least favorite pundits. But I also don’t like it when people use libel to settle disputes. It seems to me that the climate scientist Michael Mann has the public platform he needs to fight back against Steyn’s smears without having to resort to a lawsuit.
Nevertheless, I think U.S. Judge Frederick Weisberg, who’s presiding over the matter of Mann v. Steyn, probably got it right in deciding that the case can move forward, as Mariah Blake reports for Mother Jones. Ignore the hyperbole over Steyn’s loathsome comparison of Mann to Jerry Sandusky; the key is that Steyn wrote Mann had trafficked in scientifically “fraudulent” data. Steyn claims that’s a matter of opinion, but the question of whether someone committed fraud is something that is either true or not. And if it’s not true, then Steyn may well be found to have libeled Mann. The standard was set forth by the U.S. Supreme Court in Milkovich v. Lorain Journal Co. (1990).
I should note that Jonathan Adler, writing at The Volokh Conspiracy, believes that Steyn’s statements amount to “hyperbolic expressions of opinion, not statements of fact,” and should therefore be considered protected speech. My response is that it’s a close enough call that a jury should be allowed to decide.
In any event, Steyn has gotten himself into a significant mess with his prose and with his mouth. He’s reportedly had a falling-out with one of his co-defendants, the conservative journal National Review, and he currently lacks legal representation as well. I can’t say I’m sympathetic. This is a guy who once called former senator Max Cleland, who lost three limbs in Vietnam, “a beneficiary of the medal inflation that tends to accompany unpopular wars.”
But is this how we wish to decide public controversies? In court? There are any number of public forums available to Mann for him to defend himself against Steyn’s accusations, and those forums would probably provide Mann with greater satisfaction than a libel suit that could drag on for years. My advice to Professor Mann: Drop the suit and go on the attack.
James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.
On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”
Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.
My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:
There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.
Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.
Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.
The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.
More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.
This article was originally published by the media-reform organization Free Press and is posted here by permission. Josh Stearns is the journalism and public media campaign director for Free Press. You can follow him on Twitter at @jcstearns.
By Josh Stearns
Tuesday’s court decision, which struck down the FCC’s open Internet order and threatened the future of net neutrality, has huge implications for the future of journalism and press freedom.
According to the Pew Research Center, half of all Americans now cite the Internet as their “main source for national and international news.” For young people the number is 71 percent. While we are nowhere near stopping the presses or tearing down the broadcast towers, the Internet is increasing how we distribute and consume the news today.
The future of journalism is bound up in the future of the Internet.
That is why net neutrality is so important and why the court decision this week should worry digital journalists and publishers. For newsrooms the decision means that a company like AT&T or Verizon could decide where their users can go for news and what stories get buried or blocked online. Verizon could strike a deal with CNN and hamper their users’ ability to access alternative news sources. Comcast could slow access to Al Jazeera, because it wants to promote its NBC news offerings.*
That’s why, in 2010, U.S. Sen. Al Franken argued that “net neutrality is the First Amendment issue of our time.”
No journalist or publisher should be held hostage by the commercial or political whims of an Internet service provider. In the end, however, the biggest media companies aren’t likely worried about this court decision. As Stacey Higginbotham wrote:
In many ways this will be a win for the large content companies such as Disney or Viacom. Yes, they might have to pay for prioritization on the broadband networks, but they have deep pockets and such a move would help them ensure their content continues to reach consumer eyeballs as the television industry fragments online. It’s possible we could see the emergence of a pay TV bundle of content that is either exempt from caps or just delivered with pristine quality while YouTube videos sputter.
But it is not just sputtering YouTube videos we need to worry about. It is people’s ability to access the independent journalism and diverse voices, which have thrived on the Web.
In 2009 a coalition of nearly 50 online journalism innovators sent a letter to the FCC, calling on the commissioners to protect the open Internet. “Net Neutrality ensures that innovative local news websites and national nonprofit reporting projects can be accessed just as easily as legacy media sites,” they wrote. “Net Neutrality encourages journalists to pioneer new tools and modes of reporting and lowers the bar for citizens to participate.”
Net neutrality is about creating a level playing field for all voices.
In an ironic twist, when it argued against net neutrality at the federal appeals court, Verizon claimed it actually had a First Amendment right to block and censor Internet users. And while the court largely ignored Verizon’s First Amendment claims, its ultimate decision essentially gave Verizon the green light begin “editing” the Internet.
As more and more news and information moves online, we need to ensure that the flow of online information is free and unencumbered. Traditional battles over press freedom are critical, as the recent Committee to Protect Journalists report so clearly showed, but today we also have to understand that keeping the Internet free goes hand in hand with keeping the press free.
The court decision this week is bad news for the Internet and for independent media, but it is not the last word in this debate.
The Federal Communications Commission can reclassify broadband as what it is: the fundamental communications infrastructure of our time. That simple action would re-establish its legal authority and ensure that its can protect consumers and journalists from online discrimination. Protecting freedom of the press can’t stop online.
* Because of the conditions placed on their deal to buy NBC in 2011, Comcast has to abide by net neutrality principles until 2018 regardless of this court case.
The following is a press release from the New England First Amendment Coalition, which is affiliated with the School of Journalism at Northeastern University.
The New England First Amendment Coalition is seeking applications for a pair of annual awards to recognize both private citizens and professional journalists who aggressively advance the people’s knowledge of what government is doing — or failing to do — on their behalf.
The Antonia Orfield Citizenship Award and the Freedom of Information Award will be presented at NEFAC’s annual luncheon Feb. 7 in Boston. Candidates for the Citizenship Award should have shown tenacity or bravery in the face of difficulty in obtaining information of which the public has a right to know. Both awards will be presented to New Englanders for activity in the six-state region in calendar year 2013.
Nominations for the Citizenship Award are due Jan. 8 and can be made by submitting these forms by email to rosecavanagh.nefac@gmail.com or by fax to 401.751.7542.
Rosanna Cavanagh, NEFAC’s executive director, said that the FOI Award will be a recognition of journalism at its best, working to bring the sometimes shadowy workings of the government into the light of day. Work in broadcast, online or print media is eligible. It will be given to a New England journalist for work that protects or advances the public’s right to know under federal or state law. Preference will be given to applicants who overcome significant official resistance.
Applicants for the FOI Award should submit their story or series along with a cover letter explaining the process of getting the story, why it was a significant accomplishment and how it affected the public. Entries, which also are due by Jan. 8, may be submitted electronically. The entry forms are here.
The luncheon will be held in conjunction with the New England Newspaper & Press Association’s 2014 convention and trade show at the Boston Park Plaza Hotel.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, librarians, academics and private citizens. We work in partnership with the Initiative for Investigative Reporting at the Northeastern University School of Journalism.
Last January, not long after the young Internet genius Aaron Swartz committed suicide, civil-liberties lawyer Harvey Silverglate wrote powerfully about the abusive prosecutorial tactics that may have led to his death.
Swartz faced a lengthy federal prison sentence for downloading academic articles at MIT without authorization. Even though the publisher, JSTOR, declined to press charges, U.S. Attorney Carmen Ortiz brought a case agains Swartz under the Computer Fraud and Abuse Act. As Silverglate put it, the law is “a notoriously broad statute enacted by Congress seemingly to criminalize any use of a computer to do something that could be deemed bad.”
Silverglate’s article was republished in Media Nation with the permission of Massachusetts Lawyers Weekly, where it originally appeared. And it was far and away the most viewed article in Media Nation in 2013.
Today we present Media Nation’s top 10 posts for 2013, based on statistics compiled by WordPress.com. They represent a range of topics — from the vicissitudes of talk radio to a media conflict of interest, from Rolling Stone’s controversial cover image of accused Boston Marathon bomber Dzhokhar Tsarnaev to the sad, sudden death of The Boston Phoenix.
The top 10 is by no means representative of the year in media. Certainly the biggest story about journalism in 2013 involved the National Security Agency secrets revealed by Edward Snowden to The Guardian and The Washington Post — a story that did not make the cut at Media Nation.
Here, then, is our unrepresentative sample for the past 12 months.
1. Harvey Silverglate on the Aaron Swartz case(Jan. 24).Few people were more qualified to weigh in on U.S. Attorney Ortiz’s abusive tactics than Silverglate, my friend and occasional collaborator, who several years ago wrote “Three Felonies a Day,” a book on how the federal justice system has spun out of control. But Silverglate’s take wasn’t the only article about Swartz to generate interest in Media Nation. The aftermath of Swartz’s suicide also came in at No. 11 (“The Globe turns up the heat on Carmen Ortiz,” Jan. 11) and No. 13 (“Aaron Swartz, Carmen Ortiz and the meaning of justice,” Jan. 14). In a bit of poetic justice, a project Swartz was working on at the time of his death — software that allows whistleblowers to submit documents without being identified — was unveiled by The New Yorker just several months after his suicide.
2. The New Republic’s new owner crosses a line (Jan. 28). A little more than a year ago, the venerable New Republic was saved by Chris Hughes, a co-founder of Facebook who is using some of his fortune to restore the magazine to relevance and fiscal health. But he crossed an ethical line last January when he took part in an interview with President Obama, whose campaign he had worked on, and tossed a series of softball questions his way. At the time I wrote that Hughes was guilty of “no more than a minor misstep.” So how did it rise to No. 2? It turns out that a number of right-leaning websites picked up on it, bringing a considerable amount of traffic to Media Nation that I normally don’t receive.
3. Dailies go wild over sports controversies (Aug. 30). Four months after publishing this item, I find it hard to make heads or tails of what was going on. But essentially Globe-turned-Herald sportswriter Ron Borges contributed to a Rolling Stone article on the Aaron Hernandez murder case, which generated some tough criticism from both the Globe and the well-known blog Boston Sports Media Watch. That was followed almost immediately by a Globe article on the ratings collapse of sports radio station WEEI (AM 850), which brought yet more tough talk from, among others, ’EEI morning co-host Gerry Callahan, who also happens to write a column for the Herald. Yes, Boston is a small town.
4. Rolling Stone’s controversial cover (July 17). I thought it was brilliant. I still do. The accusion that Rolling Stone was trying to turn Dzhokhar Tsarnaev into some sort of pop-culture hero is absurd and offensive — and not borne out by the well-reported article that the cover was designed to illustrate.
5. Glenn Ordway walks the ratings plank(Feb. 14). Ordway built sports talker WEEI into a ratings monster only to see its numbers crater in the face of competition from the Sports Hub (WBZ-FM, 98.5). Ordway was by no means the problem with WEEI. But station management decided it could no longer afford his $500,000 contract, and so that was it for the Big O.
6. A big moment for The Boston Globe(Dec. 17). It was actually a big year for the Globe, from its riveting coverage of the marathon bombing and the standoff that led to the arrest of Dzhokhar Tsarnaev to the paper’s acquisition by Red Sox principal owner John Henry. But two days in mid-December were emblematic of the paper’s continuing excellence and relevance — a long, detailed exposé of the Tsarnaev family that revealed Dzhokhar, rather than his older brother, Tamerlan, may have been the driving force behind the bombing; an investigation into a case of alleged “medical child abuse” that pitted a Connecticut family against Children’s Hospital; and a nationally celebrated series of tweets by staff reporter Billy Baker about a Boston teenager from a poor family who had been admitted to Yale.
7. The Boston Phoenix reaches the end of the road (March 14). A stalwart of the alternative-weekly scene and my professional home from 1991 to 2005, the Phoenix was a voice of incalculable importance. But with even the legendary Village Voice struggling to survive, the alt-weekly moment may have passed. At the time of its death, the Phoenix had more than 100,000 readers — but little revenue, as advertising had dried up and both the print edition and the website were free. I scribbled a few preliminary thoughts in this post, and later wrote something more coherent for PBS MediaShift.
8. The return of Jim Braude and Margery Eagan (Feb. 6). Eagan and Braude’s morning show was the one bright spot on WTKK Radio, an otherwise run-of-the-mill right-wing talk station that had been taken off the air a month earlier. So it was good news indeed when the pair was hired to host “Boston Public Radio” from noon to 2 p.m. on public station WGBH (89.7 FM). (Note: (I am a paid contributor to WGBH-TV’s “Beat the Press,” where Eagan is a frequent panelist.)
9. Joe Scarborough grapples with history — and loses(Feb. 17). Asking cable blowhard Scarborough to write a review for The New York Times Book Review about the relationship between Dwight Eisenhower and Richard Nixon could have been a smart, counterintuitive move. But it only works if the writer in question is, you know, smart.
10. The bell tolls for WTKK Radio (Jan. 3). As I already mentioned, Jim Braude and Margery Eagan were able to walk away from the rubble of WTKK, which was shut down by corporate owner Greater Media and turned into an urban music station. Just a few years earlier the station had been a ratings success with trash-talking hosts like Jay Severin and Michael Graham. But tastes change — sometimes for the better.
Photo (cc) by Maria Jesus V and published under a Creative Commons license. Some rights reserved.
In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.
Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)
Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”
Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:
With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.
The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.
Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.
Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.
Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.
Legendary First Amendment lawyer Floyd Abrams delivered the Richard S. Salant Lecture on Freedom of the Press on Thursday evening at Harvard’s Shorenstein Center. And it was something of a surprise.
Rather than railing against the evils of government censorship, Abrams instead chose to focus on situations in which he believes the media have abused their freedoms. He was especially criticial of Julian Assange and WikiLeaks — not a new stance for him, but nevertheless counterintuitive given Abrams’ fierce defense of the First Amendment.
I put together a Storify about Abrams’ talk, which you can view by clicking here.
If you think the public is entitled to know about the security arrangements (or lack thereof) for 15-year-old murder suspect Philip Chism, then you should thank The Salem News.
