First Amendment – Page 23

Legislative committee debates shield law

By Robert A. Bertsche

I attended Wednesday afternoon’s spirited hearing at the Statehouse on the proposed Massachusetts shield bill, before the Legislature’s Joint Committee on the Judiciary. The bill is titled the “Free Flow of Information Act,” H.1553, described as “An Act providing against compelled disclosure of certain information by the news media.” Here’s a quick account of the proceedings.

Bottom line: Passage is far from assured, but the bill got its most thorough airing in years. Longtime Boston news anchor and reporter Susan Wornick spoke passionately in favor of the bill, backed up by three media lawyers (including my partner, media lawyer Jeffrey J. Pyle) and Rep. Josh S. Cutler, D-Duxbury, one of the bill’s sponsors. The committee’s House vice chair, Rep. Christopher M. Markey, D-Dartmouth, was most outspoken in opposition.

Wornick, of WCVB-TV (Channel 5), recounted her ordeal of being almost jailed in the mid-1980s for refusing to reveal her confidential source to police and a grand jury investigating alleged corruption by Revere police. “I made this promise because this man had important information. Without his information, I could not have told the story, and law enforcement could not have done their jobs.”

“I was terrified,” Wornick recalled, but she said she received widespread public support for her courage in protecting her source. “People were infuriated that I was being harassed and demonized by law enforcement because I wouldn’t break my promise.” Ultimately the source identified himself in order to save Wornick from jail time. It was big news at the time; she received a standing ovation from a packed Boston Garden when she was introduced to the crowd at a Celtics game.

“We need a shield law in Massachusetts to that journalists can do their jobs,” she said. “Anonymous sources are crucial” to journalists — we all know that.”

Media lawyer Jonathan M. Albano followed. When he started working in this legal area in 1982, the most recent case on the subject was In re Roche, two years earlier, in which the Supreme Judicial Court noted that it might be beneficial if Massachusetts law provided reporters “more clearly defined protection against intrusive discovery” than existed under the common law balancing test then (and now) in force. With clearer standards in place, “news reporters and sources might be able to base their behavior on better defined expectations, thus encouraging informed expression,” the court wrote then.

“It has been 32 years since that case and there are still no definite rules in place to guide reporters,” said Albano, managing partner of Bingham McCutchen’s Boston office. “Today, whether a source will be protected, and whether a reporter will be required to testify about that source, depends on which judge you draw,” and that judge’s exercise of her or his discretion, he said.

Pyle, appearing on behalf of the New England Newspaper and Press Association (with 230 Massachusetts daily and weekly newspaper members), then described the provisions of the proposed shield law. “The bill provides much-needed clarity that would protect the future Susan Wornicks of the world,” he told the filled hearing room.

As Jeff explained, the proposed law would apply to “covered persons,” those working for “news media” and who prepared the information at issue in that capacity. “News media,” in turn, is defined to include not only mainstream and student media but also “any entity that is in the regular business of gathering and disseminating news or information to the public by any means….”

The bill offers a near-absolute privilege as to disclosure of information identifying any news source (whether confidential or not), subject only to an exception where necessary “to prevent imminent and actual harm to public security from acts of terrorism,” in which case disclosure may be compelled if disclosure of the source’s identify “would prevent such harm” and if “the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”

The bill offers a qualified privilege as to unpublished information, the disclosure of which may be compelled only if a court finds, after notice and hearing, that there is “clear and convincing evidence” establishing that (1) the information is “critical and necessary to the resolution of a significant legal issue” before a governmental entity, (2) the information “could not be obtained by any alternative means” and (3) “there is an overriding public interest in the disclosure.”

Jeff reminded the committee of Providence television reporter Jim Taricani’s four months of home confinement in Rhode Island for defying a court order to reveal a source; James Risen’s ongoing battle to protect his source for national security secrets published in his 2006 book about the CIA; and Fox News reporter Jana Winter’s battle to protect a confidential source for her story about the notebook that James Holmes sent to his psychiatrist, previewing the shooting spree that resulted in the death of 12 moviegoers in Aurora, Colo. “In the absence of a shield law,” he said, “Massachusetts reporters face a real and imminent threat of going to jail” simply for doing their jobs.

Speaking for the Massachusetts Newspaper Publishers Association, attorney Peter J. Caruso Sr. told legislators that the bill offered them “the opportunity to provide courts, prosecutors, and litigants with “direction and clarity” as to the information that can be obtained from reporters.

Rep. Cutler, himself a former third-generation newspaper editor, assured his fellow legislators about what the proposed law is not: “It is not about protecting journalists — it’s about protecting journalism,” he said. It’s not the creation of a new evidentiary privilege, but rather the codification of an existing common law privilege. It’s not a “roadblock” to district attorneys, but rather “a road map setting forth the rules.” It’s “not a new, unproven legal theory,” but rather a piece of legislation already in place, to a greater or lesser extent, in 40 states. And it’s “not about helping media conglomerates,” but rather about “protecting the little guy,” including the small-town newspapers for whom even the “mere threat of a subpoena can have a chilling effect.”

When the floor was opened to questions, Rep. Markey, who worked for 15 years as a prosecutor in the Bristol County district attorney’s office, vigorously challenged the shield law advocates. He objected that the proposed law would deprive prosecutors of an important investigative and prosecutorial tool. He also lamented that as to identification of sources, the law would provide an undifferentiated privilege for reporters, the applicability of which would not vary based on the level of public importance of the issue about which information is sought. Markey said he believed the law would shift control of criminal investigations from prosecutors to journalists: “You’re putting the burden on government to show there are no alternatives” before seeking testimony from a reporter, such that a “journalist who hasn’t taken an oath is now the only person who has that knowledge” about certain criminal activity.

Albano disagreed, reminding Markey, “The journalist does not decide, the judge decides.” Markey retorted that the “clear and convincing evidence standard” to be met by those seeking a reporter’s testimony would prove a difficult hurdle to surmount. He ended with an emotional appeal, saying he is concerned about the law’s impact on “a 39-year-old mother who has a 19-year-old son who has been shot, and who is going to a wake that night,“ and who wants the police to do all they can to find her son’s killer. “You’re telling the police, ‘Go to everyone else, but don’t go to [the reporter]. “

Few of the other committee members spoke. State Rep. Sheila C. Harrington, R-Groton, asked a few clarifying questions, but the committee co-chairs, Sen. Katherine M. Clark, D-Melrose, and Rep. Eugene L. O’Flaherty, D-Chelsea, did not offer their views on the bill. As the hearing wound down, Sen. Richard J. Ross, R-Wrentham, spoke directly to news anchor Wornick and saluted her for her battle to fight for her source 30 years ago.

“You went through hell,” he told her.

Robert A. Bertsche is an attorney and chair of media law practice at Prince Lobel Tye LLP. Copyright © 2013 by Robert A. Bertsche, Prince Lobel Tye LLP. This work is made available under the terms of the Creative Commons Attribution-ShareAlike 3.0 license.

28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

SHOP TALK AT THIRTY
Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Every few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes — Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

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. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

A chilling act of intimidation and harassment

This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.

Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)

What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.

Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.

The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.

The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.

And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.

Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.

Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.

Branzburg v. Hayes v. The New York Times

You may not like a federal appeals court’s decision that New York Times reporter James Risen must testify in a CIA leak case. I don’t. But it’s Branzburg v. Hayes, straight up. It’s unimaginable that this would have gone the other way.

And keep in mind that even if we had a federal shield law, there would almost certainly be a national-security exception wide enough to drive a truckload of subpoenas through.

The 16th annual New England Muzzle Awards

Previously published by WGBHNews.org, the Providence Phoenix and the Portland Phoenix.

For anyone who’s been paying attention, President Barack Obama’s disappointing record on free speech, civil liberties, and governmental transparency is old news.

This year, though, is special. Obama’s longstanding lack of respect for the role of a free press in a democratic society reached new depths when it was revealed that his Justice Department had snooped on the Associated Press and Fox News’ James Rosen in trying to ferret out leakers.

Then came the überleaker — Edward Snowden, who provided The Guardian and The Washington Post with documents showing that the National Security Agency was monitoring our phone traffic, our emails, and other communications on a scale more massive than previously imagined.

“I welcome this debate and I think it’s healthy for our democracy,” Obama said after the NSA revelations. Yet his administration has already begun the process of bringing criminal charges against Snowden that could put him behind bars for decades.

It is against that chilling backdrop that Harvey Silverglate and I present the 16th Annual Muzzle Awards — a Fourth of July round-up of outrages against free speech and personal liberties in New England during the past year.

Launched in 1998, the Muzzles’ home was the late, great Boston Phoenix, which ceased publication in March. This year we are pleased to bring the Muzzles to WGBH.org, and to continue publishing them for readers of The Providence Phoenix and The Portland Phoenix.

The envelopes, please.

US Attorney Carmen Ortiz: Prosecuting — and persecuting — a fragile Internet visionary

Last January, Aaron Swartz, a 26-year-old computer prodigy and an activist for open information, hanged himself in his New York City apartment. Swartz suffered from depression and was reportedly despondent over a criminal case that Carmen Ortiz had brought against him for downloading millions of academic articles at MIT without authorization.

Swartz, who co-founded Reddit and helped develop the RSS standard, had done nothing with the articles. JSTOR, the company whose servers he had targeted, declined to press charges. But Ortiz pursued him zealously, putting out a public statement threatening him with 35 years in prison. After his death, she let it be known that he faced “only” six months behind bars if he’d pled guilty.

Ortiz may have decided to make an example of Swartz because of his outspokenness about oppressive copyright enforcement and related issues, which his MIT stunt was meant to illustrate. It wouldn’t be the first time she had demonstrated her contempt for free speech. Last year Ortiz received a Muzzle for her successful prosecution of Tarek Mehanna, a vile propagandist for Al Qaeda whose activities should nevertheless have been protected by the First Amendment.

Yet even after his death Swartz succeeded in advancing the cause of openness. In May, The New Yorker unveiled Strongbox, software that would allow whistleblowers to deposit leaked documents without being traced. Bradley Manning might never have gotten caught if it had been available to him, nor Edward Snowden if he’d chosen to use it.

The developer was Aaron Swartz.

Boston Police Commissioner Ed Davis: Strong in a crisis, but he also spied on antiwar and Occupy left

Ed Davis and other law-enforcement officials have been justly praised for their handling of the Boston Marathon bombing and its aftermath. Though the voluntary “shelter in place” order may have been excessive, a chaotic, frightening chain of events was handled with competence and courage.

The problem is that, in non-emergency situations, the authorities have a habit of demonstrating a grotesquely misplaced sense of priorities. Such was the case last October, when the ACLU of Massachusetts and the state chapter of the National Lawyers Guild unearthed documents showing that the Boston Police Department had been spying on antiwar and Occupy protesters. Among the BPD’s targets: the late Howard Zinn, an elderly Boston University professor and World War II hero. According to a report by Jamaica Plain Gazette editor John Ruch, also targeted was a 2007 antiwar rally featuring activist Cindy Sheehan, then-city councilor Felix Arroyo Sr., and Carlos Arrendondo, who memorably came to the aid of a badly injured spectator, Jeff Bauman, at the marathon bombing.

The police shared that information with the Boston Regional Intelligence Center (BRIC), the so-called fusion center comprising federal and state authorities that was supposed to be tracking terrorist threats — yet apparently never received information provided by Russian intelligence about Tamerlan Tsarnaev. Michael Isikoff of NBC News (here) and Chris Faraone, writing for DigBoston (here), offer worthwhile analysis.

Let’s hope that Davis, who also won a Muzzle in 2010, now realizes he was looking in the wrong places all along — and violating the civil liberties of patriotic Americans.

Max Kennedy: Still stonewalling after all these years on RFK’s official papers

It was bad enough that the Kennedy family had refused to release what were described as the private papers of the late Robert Kennedy. But then, last August, Boston Globe reporter Bryan Bender revealed that many of the papers were actually official documents from RFK’s time as attorney general, including some that may have pertained to assassination attempts against Cuban president Fidel Castro.

Yet the papers have still not been released. And thus RFK’s son Max Kennedy, who has acted as the family’s spokesman, earns his second Muzzle for stonewalling on the RFK papers (the first came in 2011).

According to an index obtained by Bender, the 62 boxes of files may contain crucial insights into such matters as the Kennedy administration’s anti-Castro activities, the Cuban missile crisis, and the Vietnam War. Max Kennedy said the family hoped to release all the papers. But one of the hold-ups, according to the Globe, was the family’s desire to get a tax deduction for the papers before turning them over to the public domain.

As a Globe editorial put it, the Kennedy family “never should have been granted control over official documents in the first place. And they certainly shouldn’t feel entitled to a tax deduction for them.”

It’s time to see what’s in those files.

Governor Paul LePage: Maine’s pro-gun governor tramples on the public’s right to know

Editors at the Bangor Daily News must have known their request for public documents about concealed-gun permits last February would be controversial. After all, The Journal News of White Plains, NY, had already set off a firestorm by publishing an interactive map of gun owners on its website.

But the reaction to the BDN was so intense that it called into question the very nature of “public” records. State legislators, especially Republicans, denounced the newspaper. A “Boycott Bangor Daily News Dont [sic] Tread on Us” page popped up on Facebook.

And our Muzzle winner, Governor Paul LePage, demagogued the issue, posing for a photo in which he’s seen holding up his own concealed-gun permit. He also called on the state legislature to the remove the data from the public realm as quickly as possible. (The legislation was passed and signed in April, according to the New England First Amendment Coalition.)

“If newspapers would like to know who has concealed weapons permits, then they should know the governor has his,” LePage was quoted as saying. “I have serious concerns that BDN’s request will incite fear among gun owners and nongun owners alike regarding their safety.”

It was all too much for the newspaper, which ended up withdrawing its request — even though, in an “Editor’s Note,” the paper said it “never would have published personally identifying information of any permit holder.”

This is LePage’s third Muzzle, with his previous awards coming in 2011 and 2012. His earlier antics leaned toward the buffoonish. This time, he acted as a thug, leading an unruly mob to trample on the public’s right to know.

Former New Hampshire House Speaker William O’Brien: Playing unfavorites with the press

William O’Brien is not one to brook much in the way of back talk. When a protest broke out in the House gallery during a budget hearing in the spring of 2011, he ordered state police to kick everyone out.

A year later, a fellow Republican legislator became so upset with what he saw as O’Brien’s attempts to silence him that he directed a toxic remark at the Speaker: “Seig Heil.” The legislator was ejected from the chamber and forced to apologize.

It was the Hitler reference that led to O’Brien’s Muzzle. Because Mike Marland, a cartoonist for the Concord Monitor, followed up by depicting O’Brien with a Hitler-like mustache, accompanied by the caption “If the mustache fits …”

O’Brien got his revenge. Last July, he scheduled a news conference to be held in his Statehouse office — and banned two Monitor journalists who tried to enter. An O’Brien spokeswoman explained: “When the Concord Monitor proves they have chosen to become a responsible media outlet, we’ll be happy to invite them to future media events.” (Tony Schinella of Concord Patch shot video of the journalists being held at bay, and of O’Brien responding noncommittally when asked about it.)

Trouble is, though public officials are under no obligation to give journalists special treatment by (for instance) granting interviews, under the First Amendment they must give them equal treatment when holding official events such as a news conference on public property.

O’Brien, no longer Speaker after voters returned Democrats to the majority in the last election, is now running for Congress.

Rhode Island Public Schools: ACLU filtering study reveals widespread Internet censorship

Over the past two decades, the Internet has become a crucial tool in public education, opening schoolchildren to the broader world. Yet concerns about sex, violence, and other inappropriate content has led many school districts to impose draconian restrictions limiting kids’ access to even the most innocuous material.

The ACLU of Rhode Island set out to document online censorship in the schools — and what it found should chill all of us. It turns out that filtering software used in the Rhode Island Public Schools has blocked students from accessing websites such as PBS Kids, National Stop Bullying Day, a video clip of The Nutcracker, and information about global warming. Also blocked were educational resources for gay and lesbian teens.

There is no reason to believe that Internet censorship is worse in Rhode Island than it is in other states. Under the federal Children’s Internet Protection Act, all schools and libraries that receive federal funding must filter “obscene” content, child pornography, and material that’s considered “harmful to minors” — the last being a dangerously fuzzy standard. The ACLU study, by policy associate Hillary Davis, documents problems in Rhode Island but includes findings and recommendations that should be applied nationally.

“In trying to prevent students from visiting ‘inappropriate’ websites, school officials have instead taken advantage of technology to implement an unjustifiable scheme of censorship,” according to Davis’s report. “This must change, for it is only through the free exchange of ideas that students can truly experience a full education.”

Plainridge Racecourse: A citizen journalist fights off a lawsuit aimed at silencing him

Last September the owners of the Plainridge Racecourse in Plainville, MA, SLAPP’d Thomas “T.J.” Keen hard. In the end, he slapped them back harder.

Keen, a Plainville resident and gambling opponent, set up a website called No Plainville Racino to fight a proposed slots license at the track. As Boston Globe columnist Yvonne Abraham described it, Keen’s troubles began after someone broke into his home and he gave a webcam image to the Plainville Police. The picture made its way onto a related Facebook page that another gambling opponent had started. An anonymous commenter wrote, “I wonder if they checked over at the racetrack, lol.”

Ourway Realty, which owns the track, sued Keen for defamation on the basis of that anonymous comment. Keen countersued, arguing that Ourway’s legal action had been filed for the sole purpose of stifling public debate and thus violated the state’s anti-SLAPP law. (SLAPP stands for “strategic lawsuit against public participation.”)

In the end, Keen — and the right of citizens to speak out — prevailed. Judge Patrick Brady of Norfolk Superior Court tossed aside the suit and awarded Keen nearly $25,000 to cover his legal costs, according to The Sun Chronicle of Attleboro.

“I’m happy that the court has affirmed affected citizens’ right to petition and make their voice heard in these community-changing debates,” Keen said in a statement released by the ACLU of Massachusetts, which helped represent him. “Residents should not be intimidated or bullied by deep-pocketed firms looking to quash their dissenting voice.”

Maine Department of Transportation: Keeping records about a controversial highway from the public view

A private developer has proposed a $2 billion, 220-mile highway connecting Calais to the east and Coburn Gore to the west — and all documents pertaining to the project are under seal. That’s because of a 2010 exemption to Maine’s right-to-know law that, as the Portland Press-Herald editorialized, “you could drive a truck through.”

Under the exemption, records about the proposed “east-west highway” will remain secret until the Maine Department of Transportation (DOT) decides whether to move ahead. This lack of accountability is an outrageous breach of the public trust. By rights, the officials responsible for writing and passing the 2010 exemption deserve the Muzzle. We’ll award it to the DOT as their proxy.

Fortunately, advocates of open government succeeded in undoing the worst of the 2010 exemption. On June 5, Governor Paul LePage signed legislation that maintains the legitimate need to protect confidential business information and trade secrets while subjecting most aspects of such partnerships to public scrutiny.

“Decisions about whom the government enters into partnership with and how officials spend our taxpayer money are certainly matters of public importance,” wrote Rachel Healy, communications director for the ACLU of Maine, in a commentary for the New England First Amendment Center.

The east-west highway is a controversial idea. According to the Associated Press, business owners this spring told the legislature’s transportation committee that the highway would cause them significant harm. They — and everyone in Maine — deserve to be treated with respect. A transparent process will provide that.

Rhode Island prison chief A.T. Wall: Prisoners have free-speech rights, too

Does a prison inmate forfeit his First Amendment rights? Yes, to an extent. But as US Magistrate Lincoln Almond patiently explained last September, an inmate who criticizes a prison policy that is applicable to other inmates and who provides them with relevant information — unlike a “personal matter of purely individual interest” — may indeed be engaging in protected speech.

Almond was aiming his words at the Rhode Island Department of Corrections (DOC), whose director, Ashbel T. “A.T.” Wall II, was fighting a lawsuit brought by Jason Cook, an inmate at the Adult Correctional Institute in Cranston. Cook claimed that after he complained to The Providence Journal in 2007 about a new policy that restricted reading materials an inmate could receive (which itself raised First Amendment issues and was later rescinded), prison authorities retaliated by taking away his kitchen job, trashing his cell, holding him in segregation, and subjecting him to strip-searches. The resolution of Cook’s lawsuit is still pending.

In defending itself against Cook’s lawsuit, the DOC argued, among other things, that Cook had no First Amendment right to speak to the Journal, thus prompting Almond’s finding. The DOC appealed. In February, US District Judge William Smith upheld most of Almond’s recommendations, including his finding that Cook did indeed enjoy some First Amendment protections.

“The DOC’s position that inmates could be disciplined simply for bringing prison conditions and policies to the public’s attention was extremely troubling,” said Steven Brown, executive director of the Rhode Island ACLU.

Convicted criminals, understandably, give up many of their rights when they are sentenced to prison. But it doesn’t and shouldn’t put them beyond the protection of the Constitution. A.T. Wall may not like it — but at least now he presumably understands it.

Massachusetts Superior Court Judge Peter Lauriat: Twitter emerges as a vital news tool — but not in this courtroom

The courts remain our least open institution. Twitter has helped change that, as reporters are able to send updates throughout the day from inside the courtroom. For instance, a phalanx of media is now live-tweeting every moment of the Whitey Bulger trial.

Then there is Judge Peter Lauriat, who last winter presided over the case of Nathaniel Fujita, convicted in March of murdering his girlfriend. Lauriat had no problem with television cameras or even live-blogging — but he drew the line at Twitter.

According to Robert Ambrogi, a lawyer who is also executive director of the Massachusetts Newspaper Publishers Association, Lauriat initially banned Twitter from anywhere inside the Middlesex Superior Courthouse in Woburn. He later backed off and allowed tweeting from a separate media room, but not from the courtroom itself.

“The ban on tweeting drew the unavoidable question: What’s the difference?” asked Ambrogi. The answer is unclear.

David Riley wrote at the Wicked Local Blog that Lauriat was concerned that jurors were more likely to run across a tweet by accident than another form of media.

Jeff Hermes, director of the Digital Media Law Project, reported that Lauriat expressed doubts about the quality of journalism when reduced to 140-character updates, and about his inability to prevent attendees who had not registered as journalists from firing up Tweetbot on their smartphones.

None of these were good enough reasons to ban what has become a vital news medium. Lauriat acted as he did because he could. He shouldn’t have had that option.

Another year of outrages against free speech

The 16th annual Muzzle Awards are now online at WGBH News, as well as at The Providence Phoenix and The Portland Phoenix. A New England tradition continues.

Get ready for the 16th Annual Muzzle Awards

When The Boston Phoenix ceased publication in March, I started casting about for a new home for the Muzzle Awards — an annual Fourth of July round-up of outrages against free speech in New England that I began writing in 1998.

On Tuesday we made it official — the 16th Annual Muzzle Awards will be published on Thursday by WGBH News. I talked about the Muzzles on “Boston Public Radio” with Jim Braude and Margery Eagan. We gave a sneak preview of some of the “winners,” including U.S. Attorney Carmen Ortiz, Boston Police Commissioner Ed Davis and Maine Gov. Paul LePage.

The Muzzles will also be published in The Providence Phoenix and The Portland Phoenix, which are still alive and well.

I think WGBHNews.org will prove to be a good home base for the Muzzles. Boston civil-liberties lawyer Harvey Silverglate, who came up with the idea all those years ago, is continuing with his Campus Muzzles. Former Phoenix editor Peter Kadzis, who’s now at WGBH, was instrumental in bringing the Muzzles to the station and expertly edited them. Also playing key roles were Phil Redo, managing director of WGBH’s radio operations; Linda Polach, executive producer of “Greater Boston” and “Beat the Press”; and Abbie Ruzicka, an associate producer who handled Web production duties.

Like a phoenix rising from the ashes …

Edward Snowden and the peril facing journalism

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Misplaced priorities at the Boston Police Dept.

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News; Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?