The Cohasset selectmen have backed away from their plan to subpoena The Patriot Ledger of Quincy and its sister paper The Cohasset Mariner in an attempt to find out whether town employees have been posting offensive anonymous comments to the two papers’ websites, according to a report by Patrick Ronan.
The papers are part of the GateHouse Media chain.
Still at issue is a former selectman who’s pursuing a libel action against two anonymous commenters, and who subpoenaed the Mariner in an attempt to find out who they are. According to an article published on the Ledger and Mariner websites, the papers turned over the information as requested.
According to Ronan’s story, town officials have decided to wait and see if the libel suit reveals that any of the comments in question were posted from town computers.
Something very strange is going on in Cohasset, according to The Patriot Ledger of Quincy and an affiliated weekly, The Cohasset Mariner.
The Cohasset selectmen, according to reports in both papers, are engaged in a snipe hunt to ferret out the identities of anonymous commenters to the Ledger and Mariner websites. The papers are owned by GateHouse Media, a national chain that owns about 100 newspapers in Eastern Massachusetts and publishes websites under the name Wicked Local.
Town officials have gone so far as to consider a subpoena to the two papers to force them to turn over the IP (Internet Protocol) addresses of some particularly unhinged commenters to see if they are using government-owned computers at town hall. (Each computer on the Internet has a unique IP address.) Such activities, the selectmen say, would violate town policy.
Last Thursday, the selectmen canceled a meeting when their lawyer was unable to produce a draft subpoena for their consideration. But, in a parallel action, the Mariner has reportedly received a subpoena from a former selectman who has filed a libel suit against two anonymous commenters. In a sidebar to a Ledger story that also appears on the Mariner site, there is this:
GateHouse Media has complied with the subpoenas to the Cohasset Mariner and released the IP address and emails related to those screen names in accordance with its privacy policy.
There’s a lot going on here, but let me offer a few observations.
• The selectmen are way out of line in even thinking they can demand that the newspapers turn over identifying information so that they can punish their own employees. I hope GateHouse officials will stand firm if they receive a subpoena demanding such information.
• The libel suit is an entirely different matter. Under federal law, website operators are not liable for content posted by third parties such as anonymous commenters, according to the Digital Media Law Project. But the commenters themselves are not immune from libel suits or other actions, and website operators may be compelled to help those bringing suit find out who they are. It doesn’t sound like GateHouse did anything out of line in turning over IP and email addresses, though I would certainly like to know more.
• The First Amendment is one thing; best practices are another. Though GateHouse has every right to let anonymous commenters vent in public, such behavior has an effect on the newspapers’ brand and reputation. GateHouse should put an end to anonymous comments (as Media Nation did several years ago) — or, at the very least, screen all comments for taste, offensiveness and libelous content before allowing them to be posted.
Finally, though GateHouse reporter Erin Dale seems to be doing a good job of covering her employer’s own story, this cries out for some outside scrutiny. I’d love to see The Boston Globe dig into this.
Tom Scholz, founder of the band Boston, lost his libel suit against the Boston Herald on Wednesday. Suffolk Superior Court Judge Frances McIntyre ruled that the Herald’s reporting on what drove Scholz’s former bandmate Brad Delp to suicide was a matter of opinion, which is protected speech under the First Amendment. Boston Globe coverage here; Herald coverage here.
Delp killed himself in 2007, and the Herald’s “Inside Track” gossip columnists, Gayle Fee and Laura Raposa, subsequently reported that Delp’s ex-wife Micki Delp blamed his death on his falling-out with Scholz. I have not had a chance to read McIntyre’s decision, but according to the news coverage, she ruled that Micki Delp could not prove that she did not make that statement, and that, in any case, what led to Brad Delp’s suicide was a matter of opinion.
Scholz is reportedly considering an appeal. I hope he won’t. On the face of it, McIntyre’s decision seems like a sound one. As a public figure, Scholz would have to prove the Herald knew that its report was false, or that it strongly suspected it was false and published it anyway. By citing the opinion privilege, McIntyre removed the dispute beyond the realm of fact and into an area of speech that enjoys full constitutional protection. Enough.
The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.
Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”
Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.
Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.
Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.
Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.
In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.
Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.
Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.
“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”
Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.
As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.
Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.
Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.
Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.
Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.
OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.
In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.
Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.
I think it’s very difficult for the city’s top elected official to go after a person, a company or some other organization without making it sound like a governmental threat.
Nevertheless, Mayor Tom Menino’s letter imploring Chick-fil-A to stay out of Boston (via Universal Hub) does a reasonably good job of getting his point across while acknowledging that he’s only expressing his personal views.
If you read between the lines, he seems to back off a bit from what he told the Boston Herald: “Chick-fil-A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”
Meanwhile, Gizmodo reports that Chick-fil-A’s homophobia-induced meltdown continues.
Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.
In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.
The request will be heard by a single justice of the SJC.
According to OpenCourt:
As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A. Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….
Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await single justice review.
Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM), from posting archives of its livestreamed footage, a move that was shot down by the SJC.
Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.
There may be more to say later, but I want to offer a few quick thoughts on Mayor Tom Menino’s declaration that he intends to keep Chick-fil-A out of Boston because of the company president’s opposition to same-sex marriage, as reported by Greg Turner of the Boston Herald.
Chick-fil-A has long been at odds with the LGBT community. But things got a lot worse this week, when company president Dan Cathy said, according to the Washington Post, that “we’re inviting God’s judgment on our nation when we shake our fist at him and say we know better than you as to what constitutes a marriage.”
That brought this response from Menino: “Chick-fil-A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”
My gut reaction is that Menino is wrong. It seems to me that there wouldn’t be any end to this if government officials decided to approve or reject business licenses on the basis of their executives’ religious or political beliefs. There are First Amendment issues at stake as well. Can’t the head of a company say what he thinks without risking the wrath of the government?
Starbucks, as you no doubt know, has earned a lot of praise for its support of gay civil rights. There are plenty of municipalities out there whose officials might be tempted to deny Starbucks the right to operate inside their borders. And they could point to Menino for support.
Earlier this year my employer, Northeastern University, disinvited Chick-fil-A from opening in the student center after a number of people protested. I was among those who signed an online petition asking to keep Chick-fil-A off campus. But I see a huge difference between voluntarily inviting a business to operate on your private property, as would have been the case at Northeastern, and acting to keep a business off someone else’s private property, as Menino proposes to do.
Chick-fil-A has a serious issue on its hands, and it may well have to do some damage control that goes beyond the cosmetic. The San Jose Mercury News reports that residents in Mountain View, Calif., want to keep the chain out of their community. And we can expect to see a lot more of that.
Menino actually missed his best argument for keeping Chick-fil-A out. Restaurant executives apparently want to open in a tourist-heavy area along the Freedom Trail. If I were doling out food licenses in Boston, I would be very reluctant to hand over such a prime location to a business that is closed on Sundays.
The 15th Annual Muzzle Awards, published every Fourth of July (give or take) by the Phoenix newspapers of Boston, Providence and Portland, are now online and in print.
Inspired by my friend Harvey Silverglate, a prominent civil-liberties lawyer who wrote the sidebar on free speech in academia, the Muzzles highlight outrages against the First Amendment that took place in New England during the previous 12 months.
I’ll be talking about the Muzzles on Friday at 9 p.m. with Dan Rea on WBZ Radio (AM 1030). Hope you can tune in.
Godwin’s law came to New Hampshire earlier this year. And Speaker of the House Bill O’Brien is retaliating against the Concord Monitor in a manner that may violate the First Amendment.
For those unfamiliar with the phrase, Godwin’s law — first espoused by Mike Godwin, a lawyer and veteran Internet free-speech activist — pertains to the tendency of online debate to devolve into Nazi analogies. As Godwin put it some years ago, “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”
Maybe it’s the Internet effect, but the Nazification of real-world political debate has been under way for some time now. And so it was in mid-May, when state Rep. Steve Vaillancourt, a Republican, grew frustrated with what he saw as efforts by Speaker O’Brien, also a Republican, to silence him. So Vaillancourt directed a toxic remark at O’Brien: “Seig Heil.” He was ejected from the chamber and forced to apologize.
Enter Mike Marland, who draws editorial cartoons for the Concord Monitor. He depicted O’Brien with a Hitler-style mustache, holding a razor. The caption: “If the mustache fits …” You can see the cartoon here, along with a commentary by Monitor editor Felice Belman. Despite having written an editorial taking Vaillancourt to task for his Third Reich-style outburst, Belman defended Marland’s cartoon in defiance of Republican demands that the paper apologize:
When Marland submitted the O’Brien cartoon, there was significant discussion here among the senior editors and our publisher about whether to put it into the paper. In the end, we are not Marland’s censors. He is entitled to his view of the speaker, and his views are his own. This cartoon was harsh, no doubt. But it seemed on point, given last week’s circus. In fact, several Monitor letter writers have made a similar point — in words, if not images.
There matters stood until last Friday, when O’Brien held a news conference in his Statehouse office — and banned two Monitor reporters from attending. Concord Patch editor Tony Schinella, who was among those covering the event, wrote that the reporters, Annmarie Timmins and Matt Spolar, “were told they weren’t invited and were held at bay at the door.” Schinella also shot video of the reporters being turned away (above), and of O’Brien refusing to answer a question as to why he wouldn’t let them in. (Timmins’ own video of the encounter makes for must-see viewing as well.)
O’Brien’s spokeswoman later released a statement: “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.”
As the Monitor put it in an editorial, “It’s hard to know which is more startling: a politician attempting to pick his own press corps or the notion that a politician — or a politician’s mouthpiece — gets to decide what constitutes ‘a responsible media outlet.’ Are these people new to this country?”
Now, depending on your point of view, you might think O’Brien’s behavior was either boorish or principled. But perhaps you wouldn’t question his right to do it. Indeed, even the Monitor editorial included this: “There’s nothing requiring O’Brien to let the Monitor into his press conference.”
In fact, though, O’Brien may well have been interfering with the Monitor’s First Amendment right to cover the news.
Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:
A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.
But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.
Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.
The parallel between the Honolulu and Concord situations is pretty obvious, though it’s impossible to say whether a different court would come to the same conclusion nearly 40 years later. In a commentary published by the Monitor, Steven Gordon, a lawyer, argued that O’Brien’s action may well have been an unconstitutional abridgement of the paper’s free-press rights.
I just hope Speaker O’Brien comes to his senses and realizes that the Monitor was well within its rights to run the Hitler cartoon no matter how much he may wish it hadn’t done so. He, on the other hand, has no right to discriminate against a media outlet he doesn’t like.
There may be more to say later, but I want to offer a few quick thoughts on Mayor Tom Menino’s declaration that he intends to keep Chick-fil-A out of Boston because of the company president’s opposition to same-sex marriage, 
