First Amendment – Page 28

Norfolk DA seeks to close a window at OpenCourt

OpenCourt, an ambitious project affiliated with WBUR Radio (90.9 FM) that’s designed to shine some sunlight on court proceedings, has been dealt a setback at the hands of Norfolk County District Attorney Michael Morrissey.

Last week OpenCourt began webcasting a livestream from Quincy District Court. But several days into the experiment, Morrissey asked that archives of the video stream be closed to the public. A motion (pdf) filed by his office claims that “the privacy and safety of victims and witnesses could be seriously compromised,” especially in cases involving gang violence. The motion cites the possibility that the jury pool could be tainted as well.

The OpenCourt blog responds:

The letter and the motions came as a great surprise to us, since we have for the past four months met with all stakeholders of the court, including the District Attorney, to ensure we implement this groundbreaking pilot project responsibly and respectfully.

While we will continue to record sessions, we have voluntarily decided to suspend posting the archives until sometime after May 18, 2011, as we try to work out a practical solution to the concerns raised by the District Attorney.

Headed by WBUR’s executive editor for new media, John Davidow, OpenCourt received a $250,000 Knight News Challenge grant to livestream court proceedings and to make it easier for journalists, both professional and citizen, to provide coverage via Twitter and live-blogging.

“It’s a pilot,” Davidow recently told Justin Ellis of the Nieman Journalism Lab. “It’s now a reality and off the white board. More and more issues will come forward.”

What makes this sticky is that OpenCourt has no First Amendment right to archive its video, or even to livestream. The project is entirely dependent on the goodwill of court officials. Yet the traditional closed-door mentality of our justice system helps foster suspicion and cynicism — exactly the negative attitudes that Davidow and company are trying to break down by making it easy for us to see exactly what takes place.

Let’s hope Morrissey thinks better of his knee-jerk reaction to openness and gives OpenCourt the room it needs to keep moving forward.

Note: OpenCourt’s struggle with Morrissey is also being tracked by the New England First Amendment Center at Northeastern University, to whose blog I occasionally contribute.

In Massachusetts, silence is literally golden

When state officials pay someone to go away, they often pay for that person’s silence, too. That’s what Boston Globe reporter Todd Wallack found in a review of “more than 150 large severance and settlement agreements signed by state agencies since 2005.”

More than half contained either a confidentialty or non-disparagement clause, and one in five contained both, Wallack reported in Sunday’s Globe. And the practice persists even though Attorney General Martha Coakley has ruled such clauses are illegal in most cases.

Wallack’s findings point to an unfortunate reality: Gov. Deval Patrick, despite his reformist credentials, is no more a fan of open government than his predecessors regarding information that could make him or his agency heads look bad.

As Wallack notes, it was a big deal when then-state treasurer Tim Cahill’s use of confidentiality agreements was exposed a few years ago. Now it turns out that the practice is far more widespread than anyone knew at the time.

Consider this story in context. In 2008, Colman Herman reported for CommonWealth Magazine that the public-records law was a shambles, and that Patrick — like his predecessors — had made it be known that he considered many of the executive branch’s actions to be exempt from the law, a questionable proposition. (Note: I have contributed articles to CommonWealth, and my Northeastern colleague Walter Robinson is quoted in Herman’s story.)

Patrick was portrayed as having turned over records voluntarily despite his contention that he didn’t have to. But for advocates of open government, it’s clear that what’s needed in Massachusetts is root-and-branch reform. Anyone want to guess at the chances of that happening?

Update: Herman reports on some recent efforts to strengthen the law in a post for the New England First Amendment Center, but makes it clear that we’re a long way from true transparency.

Photo (cc) by Scott LaPierre via Wikimedia Commons. Some rights reserved.

Police officer vows to defy First Amendment

Last fall, the New Haven Police Department came under criticism after officers were caught harassing people trying to video-record them while they were making arrests during a crackdown on rowdy bars. In one instance, according to an internal report, a commanding officer went so far as to confiscate an iPhone and order another officer to erase the video.

Police Chief Frank Limon, in response, said publicly that citizens have a right to video-record the police as long as they don’t interfere. Officers are attending training sessions reinforcing that message. And Limon recently issued a general order putting it into writing.

So what do you do when an officer — posting pseudonymously in the comments section of the New Haven Independent, a five-year-old non-profit news site — makes it clear that he’s going to keep doing things his way?

It’s an interesting question, and one with no easy answer.

On March 3, Independent editor and publisher Paul Bass covered a training session led by Assistant Chief Tobin Hensgen. Nineteen of the department’s more than 400 officers were there. Presumably all of them will be cycled through at some point.

As it happened, I was on one of my reporting trips to New Haven, so I was there. Among other things, I got to see another dimension to the controversy: Hensgen showed a video clip of a handgun convincingly disguised as a cellphone. I can certainly understand why an officer would want to inspect a cellphone if someone were aiming it at him at a crime scene.

Coincidentally, later that afternoon Chief Limon held a news conference at police headquarters to respond to two investigations into incidents of police harassing cellphone-wielding bystanders. (I was on hand for that as well, tagging along with reporter Thomas MacMillan.) Former assistant chief Ariel Melendez was at the center of both incidents. He retired in January with a pension of $124,500.

On Saturday, a commenter who identified himself only as “J” (scroll down) wrote that he was at the training session, and that he would insist on inspecting a cellphone at the scene because of the possibility that it could be a weapon. So far, so good. Then he added this:

Also if I am conducting an investigation involving a juvenile and I find that you are filming I will ask you to stop. If you do not comply I will take your phone and place it into evidence. The identity and image of a juvenile will be protected. Of course if you see a officer abusing a juvenile or anyone for that matter and film it this is a different story.

Bass responded in an “Editor’s Note”:

I believe you will be breaking the law in that latter case. If you do that to us, we will pursue all legal avenues to make sure you are punished. However, I agree with you that we shouldn’t film the juvenile; that is our responsibility. However again, we do feel comfortable filming the scene but leaving the juvenile’s face and identity out of it.

“J” posted again, making it clear that he understood the law, but was going to do what he thought was right regardless:

No, if I am dealing with a juvenile while conducting an investigation then the entire well-being of that child is MY responsibility, not the individual who is filming.

I completely understand that you or anyone would pursue me or any other officer legally, unfortunately that comes with this job.

If I am to be pursued legally my report will show my justification for what I have done and I will have to play the odds. I can say that anything regarding a child plays heavily on the feelings of all adults, so I would find it extremely hard for any court to find fault in what I did. I, however will sleep well knowing I did the right thing legally or not.

I guess we will agree to disagree.

Bass:

We are not disagreeing about what the law says. We are not disagreeing about what the policy is. We are disagreeing about whether you should follow the law; that’s your choice. In terms of protecting the juvenile — in the case of the Independent, we agree not to run the face of a juvenile being arrested. If another citizen or media outlet chooses to run a photo of juvenile in public causing trouble, the law is 100 percent clear that this is legal and permissible and that you are breaking the law if you try to prevent it.

There’s more, but that’s the gist of it. What’s at the heart of this dispute is a little-understood fact: that news organizations protect the identities of juveniles by custom, not as a matter of law. No one is legally prohibited from publishing the name of a juvenile charged with a crime — and, in fact, names often are published if the crime is notorious enough.

Nor do juvenile victims and witnesses enjoy any legal protections against having their identities revealed. Protecting their identities is a custom, and a good one. But making it a matter of law would violate the First Amendment’s guarantee of free speech and freedom of the press. The Supreme Court has on several occasions struck down laws that attempt to codify that custom.

What’s interesting about “J” is that he seems to be well aware of that, but doesn’t care. In part, he may be reacting to a legitimate concern about citizen journalism: though a news organization like the Independent isn’t going to publish the names of juveniles, there’s nothing to stop someone with a cellphone camera from posting a video to YouTube that clearly identifies underage suspects, victims and witnesses.

Under the Constitution, though, they have every right to do that. As the saying goes, “What part of ‘no law’ don’t you understand?”

A troubling libel suit against the Herald

Geoff Edgers’ story in Sunday’s Boston Globe on the troubled life of Boston singer Brad Delp raises some interesting questions about libel law. The most important is this: If a newspaper publishes a report that is accurate, what obligation does it have to verify that it is also true?

Following Delp’s suicide in 2007, the Boston Herald’s Inside Track reporters, Laura Raposa and Gayle Fee, wrote that Delp’s ex-wife, Micki Delp, blamed Delp’s death on his troubled relationship with Tom Scholz, Boston’s founder and leader. According to court documents examined by Edgers, the Tracksters also relied on e-mails from Micki Delp’s sister Connie Goudreau. (Here’s some more background on the case and its principals.)

Scholz, in turn, sued Micki Delp and Connie Goudreau for defamation, and in 2010 filed a libel suit against the Herald as well, charging that the Herald should have known Micki Delp had a personal vendetta against Scholz. Goudreau has settled with Scholz, but the other cases remain unresolved.

Edgers presents powerful evidence that Delp’s suicide should not be blamed on Scholz. Delp had suffered from depression for years, and his relationship with his fiancée, Pamela Sullivan, was troubled. Still, who knows what could drive a person to suicide?

In simple terms, the legal question is whether the Herald was obliged to go beyond accurately reporting what Micki Delp and Goudreau were telling its reporters and determine whether their accusations against Scholz were actually true. Was Delp as upset with Scholz as his ex-wife and sister-in-law claimed? Did that so traumatize Delp that it could have contributed to his suicidal state of mind?

A verdict against the Herald would be very bad news for the press. Because Scholz is a public figure, he would have to prove that the Herald knew or strongly suspected that its reporting was false. Even if Fee and/or Raposa knew Micki Delp had it in for Scholz, it doesn’t necessary follow that they thought she was lying.

In the relevant Supreme Court case, Harte-Hanks Communications v. Connaughton (1989), the court found in favor of a public official who’d been maligned after it was proven (among other things) that the managing editor of the local newspaper literally ordered reporters not to interview a source or examine documents that might contradict the story she wanted to publish.

That is not remotely what’s at issue in the Scholz case. Based on Edgers’ article, it seems to me that not only did Fee and Raposa not doubt they’d gotten the story right, but that Scholz would have a very difficult time proving they’d gotten it wrong in any definitive way.

Photo (cc) by Craig Michaud via Wikimedia Commons and republished here under a Creative Commons license. Some rights reserved.

Kennedy hypocrisy harms the public interest

Central to the idea of censorship is that it’s an action taken by the government. But it appears that the Kennedy family may have come up with a new form of censorship: suppression of government documents by a private person.

Boston Globe reporter Bryan Bender writes that Max Kennedy, one of Robert Kennedy’s children, has barred full access to his father’s papers dating back to his time as attorney general. Historians tell Bender those documents could prove embarrassing given what they might reveal about RFK’s actions with regard to Cuba and civil rights.

For censorship aficionados, Max Kennedy’s e-mail to Bender is a classic:

There are many requests to see them, and frankly, many of those requests come from people with poorly-conceived projects. It is my responsibility, as custodian of the papers, to grant use responsibly. That does not mean that every book must be cloyingly positive; I do not think that for a moment, and I would be doing a disservice to my father if I acted that way. But I do believe that historians and journalists must do their homework, and observe the correct procedures for seeking permission to consult the papers, and explain their projects.

In other words, freedom of information is too precious to grant it to just anyone. What a repulsive example of hypocrisy.

Those papers were created at public expense and belong to us. It’s been 50 years. I’m not sure why Max Kennedy even has a say in the matter. But since he does, it’s long since time for him to put the public interest above the possibility that his father’s legacy will be tarnished.

Update: Martin Callaghan points out that Bender does not explain why the Kennedy family rather than the government gets to decide who has access and who doesn’t. The story demands follow-up, and I hope that explanation is forthcoming.

Photo via Wikimedia Commons.

Trampling on the rights of parents

Swampscott school officials are a disgrace. Check out this Salem News story about a meeting on drug and alcohol abuse that parents of high-school students were forced to attend — the penalty for non-compliance being that their kids would be banned from sports and after-school clubs.

Once the parents got there, they were told they could not speak. According to the News, one parent was informed he could keep his mouth shut or face arrest. The media were barred as well, though school officials were unable to stop News reporter Ethan Forman from attending, since he’s the father of a Swampscott High School student. Yet even that didn’t stop a police officer from reportedly trying to kick him out.

According to today’s News, principal Layne Millington “is hoping to hold a second gathering with parents.” No word on whether Millington plans to organize a posse in order to round up parents to make sure they attend. In an editorial, the News rightly calls the meeting “an exercise in authoritarianism and censorship.”

The Swampscott Reporter, which was unable to get a reporter inside, editorializes that school officials’ thuggish tactics (my phrase, I should be careful to point out) “have given Swampscott a black eye.” (Here’s the story the Reporter posted in advance of the meeting.)

And why did Essex County District Attorney Jonathan Blodgett address the parents? Back when district attorneys, rather than the attorney general, enforced the state’s open-meeting law, Blodgett’s office was always responsive about complaints and tough on public officials who violated the law. Once Blodgett saw what was up in Swampscott, he should have refused to participate. Maybe he didn’t realize the media had been banned.

This was an enormous mistake. Swampscott school officials should apologize for their shameful actions.

The stunningly appropriate photo is taken from the Swampscott High School website.

A First Amendment hero-in-the-making

Last night I met a fledgling First Amendment hero: Michael Morisy, co-founder of MuckRock, a site where he posts public documents he obtains from filing public-records requests.

Morisy, as you might have heard, may be in trouble because of how Gov. Deval Patrick’s administration handled his request for records about how much money has been spent at various Massachusetts businesses under the federal food-stamp program.

The state complied with Morisy’s request. Then, in a classic CYA move, the administration — realizing after the fact that the release may have violated federal law — sent a letter to Morisy informing him he could be subject to a possible fine or imprisonment if he doesn’t take the information down. It was a ridiculous threat, and Morisy has refused to comply. The courts have consistently ruled that, under the First Amendment, the onus for keeping private records private is entirely on the keeper of those records, not on those who would publish them.

Nor is the privacy of any food-stamp recipients at risk. The records published by MuckRock, according to this Boston Globe story by Noah Bierman, do not identify any recipients.

It doesn’t seem likely that Morisy and his tech guy, Mitchell Kotler, are in any real trouble. In a follow-up in the Globe by Jonathan Saltzman, we learn that the Patrick administration issued a second CYA to cover its first CYA, assuring one and all that it never, ever intended to threaten MuckRock. Oh, no, of course not.

“At this point, I think the legal issue will blow over,” Morisy tells Chris Faraone of the Boston Phoenix. “But it’s still interesting, because all of a sudden people got very interested in what we’re doing.”

Still, you never know. Last night Morisy attended a panel discussion I moderated at Boston University on “Legal Liability in the Age of WikiLeaks,” with local First Amendment lawyers Jon Albano and Rob Bertsche. Bertsche, who has agreed to represent Morisy for free, made it clear that he doesn’t consider MuckRock to be out of the woods just yet.

Given the public attention this issue has received, I think Gov. Deval Patrick himself should announce that Morisy and Kotler are in no danger for posting records they received as a result of making a legitimate public-records request. Patrick should apologize while he’s at it.

Photo is from Morisy’s LinkedIn profile.

Please join us for a panel on WikiLeaks and the law

This Wednesday I’ll be moderating a conversation on “Legal Liability in the Age of Wikileaks,” starring two terrific First Amendment lawyers — Rob Bertsche of Prince Lobel and Jon Albano of Bingham McCutcheon.

The program is being sponsored by Hacks/Hackers of Boston, which brings together journalists and technology folks. We’ll schmooze from 6 to 7 p.m. and get down to business from 7 to 8. I hope you’ll join us.

The session will be held in the student lounge at Boston University’s College of Communication, 640 Commonwealth Ave. For more information, just click here.

Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

The Phoebe Prince case and the right to speak

The tragic South Hadley bullying case has led to a federal lawsuit charging that a town official denied a local resident his First Amendment right to speak at a public meeting. Luke Gelinas, the father of two kids in the school system, was tossed out of an emotional South Hadley School Committee meeting on April 14. He has now filed a civil-rights lawsuit in U.S. District Court. The Republican of Springfield reports on the suit here, and the Boston Globe here.

Then-School Committee chairman Edward Boisselle reportedly ordered Gelinas to leave after Gelinas invoked the name of 15-year-old suicide victim Phoebe Prince, violating a ground rule Boisselle had set. Gelinas was escorted out of the meeting room by two police officers.

The offending statement (pdf) that Gelinas delivered that night is a model of respectful decorum. In it, he called for the removal, resignation or censure of Boisselle, school superintendent Gus Sayer and high school principal Daniel Smith.

According to The Republican, at the April 28 School Committee meeting Gelinas was back, and apparently none too happy about his treatment two weeks earlier. He compared Boisselle — no longer the chairman — to Joseph Goebbels and Joseph Stalin. Shortly thereafter the ACLU sent a letter to the committee complaining Gelinas’ First Amendment rights had been violated at the April 14 meeting.

In June, Luke and Lorraine Gelinas and a third parent, Darby O’Brien sued the School Committee in Hampshire Superior Court, claiming the committee broke the state’s open-meeting law by approving a two-year contract extension for superintendent Sayer in executive session on Feb. 24.

The newly filed federal suit names Boisselle and the two police officers as defendants, but not the School Committee itself.

It’s hard to pass judgment on this without knowing the personalities involved and what, if any, attempts were made to settle this beforehand. But if Boisselle and company could have made this go away with a public apology, then they missed an opportunity that may not come around again.

And if Gelinas had simply been allowed to read his statement on April 14, it may never have occurred to him to compare Boisselle to a couple of genocidal monsters.

Photo via Wikimedia Commons.