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.
Clicking led to a blog post by Globe political reporter Matt Viser, who had covered an event by Mitt Romney in Washington at the Newseum, a museum about journalism and the importance of the First Amendment. Toward the end, as Baron noted, came this rather startling paragraph:
Romney stayed to take questions. But following his 28-minute address — held at the Newseum, which is situated between the US Capitol and the White House — reporters were escorted out of the room and weren’t allowed to listen to the questions.
In the Newseum? The irony couldn’t have been any thicker. (And not just Romney. See update below.) As Huffington Post media reporter Michael Calderone put it a short time later:
Media blogger Jim Romenesko wrote that he contacted Newseum spokesman Jonathan Thompson and “suggested … that the Newseum put a clause in its room-rental contracts requiring journalists be respected in the House of Journalism — for example, not be marched out of a room when it’s time for politicians to face questions.” Please click to read Thompson’s response, but the short version is that Rosen’s prediction was on the mark. You’ll also see my suggestion for how Thompson should have responded.
So those are the facts. What are we to make of this?
First, I’m inclined to give the Romney campaign half a pass here. It is hardly unusual for presidential candidates to hold events from which the media are excluded. You may recall that one of the worst moments of Barack Obama’s 2008 campaign was when he complained to supporters at a no-media event about Pennsylvanians who “cling to guns or religion.” In that case, a supporter named Mayhill Fowler, who also blogged for the Huffington Post, decided to write it up.
But Romney only gets half a pass because he and his handlers should have known that excluding reporters from an event in the “House of Journalism,” as Romenesko called it, would create unwanted controversy in a way that excluding them from a fundraiser in a hotel banquet hall wouldn’t.
Second, and more important, the Newseum’s response was reprehensible. I’m reasonably sure officials there didn’t know Romney was going to lower the cone of silence. Maybe it’s never happened before. But the proper response would have been to express chagrin and promise that steps would be taken to make sure it doesn’t happen again. Reporters should never be kicked out of an event at the Newseum, whether it’s private or public. But as of this writing there’s been nothing from the Newseum other than Thompson’s statement and this tweet from Thursday:
No doubt the Newseum needs the rent money. According to its tax filings for 2010, the most recent that’s publicly available at GuideStar, the museum took in $73.4 million and spent $78.8 million, for a deficit of $5.4 million.
On Thursday, though, Newseum officials stepped in it in a way that could end up costing them a lot more in future donations than they’ve ever made in private rentals. My guess is the proverbial high-level conversations are taking place right now.
Update: Politico media reporter Dylan Byers takes a swipe at Calderone, his predecessor in the job, saying that Obama “did the exact same thing” at the Newseum back in March. Yes, it should have been news then. And it only underscores that it’s long past time for the Newseum to prohibit private groups that rent its facilities from banning reporters from their events.
Photo (cc) by David Monack and republished here under a Creative Commons license. Some rights reserved.
Boston Globe columnist Brian McGrory will not be ordered to reveal the identity of a source who told him about a secret sidebar conference involving two jurors in the murder trial of Dwayne Moore.
Moore was the principal suspect in a horrific 2010 multiple murder in Mattapan. His case ended in a mistrial earlier this year, and prosecutors are seeking to bring charges again. Moore’s lawyer had accused the prosecution of leaking the information to McGrory in an attempt to poison the jury pool. But Superior Court Judge Jeffrey Locke disagree, according to the Globe’s Peter Schworm.
“I don’t see anything in the column that differentiates it from all the other news stories,” Locke was quoted as saying.
Boston Globe columnist Brian McGrory, who wrote about a secret sidebar conference with two jurors over the recent mistrial involving the Mattapan killings, may be hauled into court and ordered to reveal the identity of a confidential source.
Boston Herald reporter Matt Stout reported on April 3 that John Amabile, the defense lawyer for murder suspect Dwayne Moore, was demanding to know who had leaked information to McGrory about the lone juror whose refusal to convict Moore led to a mistrial. Four people died in the shootings, including a 2-year-old boy.
If the prosecution had leaked to McGrory in defiance of an order by the trial judge, Christine McEvoy, Amabile told the Herald, he might seek to have the charges against his client dismissed.
McGrory, not surprisingly, declined to talk about the matter in any detail when the Herald contacted him, saying, “Obviously I quoted someone in the column on a grant of anonymity, and I hope you would understand that.” And McGrory told his own paper, “Because the information was provided to me under the condition of confidentiality, I obviously can’t reveal the nature of the source.”
The parties were back in court on Tuesday. Cramer reports that Amabile told Suffolk Superior Court Judge Jeffrey Locke, who’s looking into Amabile’s complaint, that he might subpoena McGrory or prosecutor Edmond Zabin. Cramer writes that “Locke urged him not to do so without seeking the court’s permission.”
And the Herald’s Laurel Sweet, who also reported on the Tuesday hearing, quotes Locke as telling Amabile, “I’m not taking any remedies off the table.”
The inquiry will resume on May 8. If McGrory is asked to attend, it sounds like he’d be well advised to bring a toothbrush.
McGrory would have little to worry about if Massachusetts were not one of 10 states lacking a shield law giving journalists the right to protect their confidential sources. Last month, a legislative committee heard a proposal to create such a law, a broadly defined measure that would appear to protect anyone engaged in journalistic activities, including bloggers and citizen journalists.
The McGrory situation shows why a shield law could be beneficial. Whoever leaked to him was confident that the Globe would not reveal his identity. It is clearly in the public interest to get as many details about the Mattapan case out into the open as possible.
If Amabile’s complaint somehow leads to the source’s identity being revealed, that would have a chilling effect on the next insider who’s tempted to pick up the phone and call a reporter.
Andrew Phelps of the Nieman Journalism Lab has posted a useful round-up following the ACLU’s announcement that the city of Boston will pay $170,000 to settle a lawsuit brought by a man who was arrested while attempting to video-record police activity.
The suit was filed by Simon Glik, a lawyer, after he was arrested while recording the arrest of a teenager on the Boston Common in October 2007. The settlement follows a ruling last fall by the U.S. Court of Appeals for the First Circuit that Glik was “exercising clearly established First Amendment rights.”
The Boston Police Department has since reversed its stance that such video-recording violated the state’s wiretapping law. Said Glik’s lawyer, Daniel Milton:
It is important that citizens be able to record police acting in public so that the police can be held accountable for their actions. As we see all around the country and world, images captured from people’s cellphones can have a remarkably important effect on public debate of public information. It is ultimately a tool of democracy.
As media observer Dan Gillmor noted on Twitter, “It’s not the city of Boston that will pay for violating 1st Amendment; it’s the taxpayers. Good result anyway.”
BOSTON — Simon Glik, a Boston attorney wrongly arrested and prosecuted for using his cell phone to record police officers forcefully arresting a man on the Boston Common, has reached a settlement with the City of Boston on his civil rights claims. The settlement requires the City to pay Glik $170,000 for his damages and legal fees.
Mr. Glik was forced to defend himself against criminal charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. After a judge threw out those charges, Glik filed a civil rights suit against the city and the arresting officers in federal court in Boston, aided by the American Civil Liberties Union of Massachusetts and Boston attorneys Howard Friedman and David Milton. This settlement resolves that case.
The settlement follows a landmark ruling last August by the U.S. Court of Appeals for the First Circuit, declaring that the First Amendment protects the right to record police carrying out their duties in a public place, Glik v. Cunniffe 655 F.3d 78 (2011). The First Circuit’s ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
The Massachusetts wiretap statute prohibits only secret recording of audio. The First Circuit in Glik’s case affirmed that an arrest under the statute for openly recording the police would violate not only the First Amendment right to gather information but also the Fourth Amendment’s guarantee against false arrests.
“The law had been clear for years that openly recording a video is not a crime. It’s sad that it takes so much for police to learn the laws they were supposed to know in the first place. I hope Boston police officers will never again arrest someone for openly recording their public actions,” said Glik.
“The court’s opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public. With this issue squarely resolved against it, it made sense for the City to settle the case rather than continuing to waste taxpayer money defending it,” said David Milton, one of the attorneys for Glik.
As part of the settlement, Glik agreed to withdraw his appeal to the Community Ombudsman Oversight Panel. He had complained about the Internal Affairs Division’s investigation of his complaint and the way they treated him. IAD officers made fun of Glik for filing the complaint, telling him his only remedy was filing a civil lawsuit. After the City spent years in court defending the officers’ arrest of Glik as constitutional and reasonable, IAD reversed course after the First Circuit ruling and disciplined two of the officers for using “unreasonable judgment” in arresting Glik.
After Glik filed suit, the City of Boston appeared to change its policy of letting police officers arrest and charge people with illegal wiretapping for recording them with cameras or cellphones in plain sight. The City developed a training video based on facts similar to the Glik case, instructing police officers not to arrest people who openly record what they are doing in public.
“The First Amendment includes the freedom to observe and document the conduct of government officials, which is crucial to a democracy and a free society. We hope that police departments across the country will draw the right conclusions from this case,” said Sarah Wunsch, ACLU of Massachusetts staff attorney.
Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)
But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.
Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.
OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.
The SJC’s decision says in part:
We conclude that any order restricting OpenCourt’s ability to publish — by “streaming live” over the Internet, publicly archiving on the Web site or otherwise — existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.
OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.
John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.
What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.
Many police departments in Central Massachusetts violate the law when asked to produce public police-log records, according to an investigation by the Worcester Sunday Telegram. Some flat-out refused. Others demanded identification in violation of the law, and three even went so far as to run a database check on the person requesting the records, the paper reports.
“The law is clear,” the story begins. “Police departments must keep and update a daily log of their activities, reported crimes and arrests, and that log must be readily available to the public at no cost and with no questions asked.”
This interactive graphic provides a quick overview as to which police departments were in compliance and which weren’t.
Any of us who has worked in journalism knows that some police departments cooperate only with reporters they know and trust, despite the state public-records law, which requires them to produce records pertaining to incidents and people who’ve been arrested.
Police departments are not required to produce detailed incident reports about pending investigations.
Whenever I’ve sent students out to obtain police-log records, the results have been mixed. Boston Police, whose headquarters is a short walk from the Northeastern campus, was so accustomed to student requests that they’d form a virtual welcoming committee, giving them everything they needed before they were even asked. I eventually had to require that students visit other police departments — Boston was making it too easy.
But some police departments in Greater Boston were so uncooperative that my students were unable to complete the assignment unless they returned two or three times.
Media lawyer Jonathan Albano, a member of the board of directors of the Northeastern-affiliated New England First Amendment Coalition, tells the Telegram:
This shows why you need the public records law. People in those positions worry about if it’s all right or not to give someone this public information. After a while, they start to think of it as their information and that it’s their job to protect it.
The Telegram’s investigation also demonstrates the dangers of what happens when the police become a law unto themselves.
Kudos to David Carr of the New York Times for shining a light on an issue that doesn’t attract nearly the attention that it should: the Obama administration’s abuse of the Espionage Act, which in turn has led to a virtual war on journalism and free expression.
As Carr notes, the Espionage Act, approved in 1917 during the hysteria of World War I, was used three times before President Obama took office in 2009 — and six times during his presidency.
We live in a dangerous era, and there have been prosecutions with which it may be hard to disagree. Carr cites the case of Bradley Manning, who’s been charged with stealing national-security documents that are at the heart of the WikiLeaks disclosures.
But Carr also writes that leak prosecutions often seem to be aimed more at punishing people for embarrassing the government than for genuinely damaging national security. In a particularly ironic case, a former CIA officer named John Kiriakou has been charged with leaking the names of agents involved in interrogating terrorism suspects. Carr points out that “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”
(More about the Kiriakou case from the Reporters Committee for Freedom of the Press. Kiriakou has denied the charges.)
Kudos, too, to Jake Tapper of ABC News, whose confrontation with White House press secretary Jay Carney is the hook Carr uses to delve into the issue. A fuller account of Tapper and Carney’s exchange can be found here. Here’s Tapper responding to Carney’s praise for the journalist Marie Colvin, killed in Syria last week:
How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.
I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters. The fact is, though, that no president has been more aggressive than Obama in prosecuting suspected leakers.
And given the way the media work, it’s no surprise that they’ve said little, since the heart of what they do is respond to accusations. The storyline being promoted by Mitt Romney, Rick Santorum and Newt Gingrich is that Obama is weak on national security, so they’re certainly not going to criticize the president for being too tough on leakers. Thus, no story.
When the government wants to take suspected leakers to court, it inevitably demands that journalists reveal their confidential sources. There is no constitutionally recognized right for journalists to protect their sources, and no federal shield law, which means that such cases have a considerable chilling effect on tough reporting.
In 2006, “Frontline” interviewed Mark Corallo, who was director of public affairs for George W. Bush’s first attorney general, John Ashcroft. In this transcript, you’ll see that Corallo, with the support of Ashcroft — not generally thought of as a friend of the First Amendment — approved only one subpoena for a journalist out of “dozens” that were requested. Corallo continued:
I can’t tell you about that case. It was a national-security case. I believed, after long reflection, that it did put innocent people’s lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot.
I hope Tapper’s tough questioning and Carr’s column are the beginning of a genuine attempt to hold the Obama White House to account for its repressive policies.
Last month I praised Sen. Scott Brown for his quick response to those of us who signed an online petition opposing draconian anti-piracy bills being considered by Congress. On Monday, I heard from Sen. John Kerry as well. Here’s what he wrote:
Dear Dan:
Thank you for your letter regarding the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act). I appreciate hearing from you on this important issue.
I have long championed the cause of innovation and an open Internet. Firms operating on and off the Internet strongly rely on intellectual property laws to help protect their investments and ensure a just return for their goods and services. Online piracy and copyright infringement hurts our economy and costs American businesses more than 200 billion dollars a year. Many infringers operate from foreign countries in order to avoid US law enforcement. As a result, under current law, American authorities are limited in what they can do to bring these rogue sites to justice.
As you know, the PROTECT IP Act was intended to protect American businesses from intellectual property theft on foreign websites. Among other things, the bill would provide the Attorney General with the authority to seek a court injunction against a foreign website that engages in copyright infringement. The court could also require U.S. websites to block access to websites found to be dedicated to infringing activities. For example, search engines could be required to disable links to the website that is found to be violating copyright of a US company.
However, there are a number of serious and legitimate concerns regarding the scope of the legislation, as well as the potential for abuse, censorship, or other unintended consequences. The authors recognize the legislation still needs work and I will oppose any proposal that would fundamentally undermine or impede the ability of people to communicate, compete, and innovate using the Internet.
I am pleased that Majority Leader Reid has indefinitely postponed Senate consideration of the PROTECT IP Act, and I will continue to review and work to improve legislation to both protect the intellectual property of American businesses and to ensure the web remains free and open. As I consider proposals to address these issues, I will keep your views in mind.
Thank you again for contacting me on this topic. Please don’t hesitate to reach me again on this or any other issue in the future.
Andrew Phelps of the Nieman Journalism Lab has posted 
