Category: First Amendment

J.D. Salinger’s battle against free expression

J.D. Salinger, who died Wednesday at the age of 91, spent the last year of his life waging a wrong-headed battle against the fair-use exemption to copyright law, which allows for the use of copyrighted materials without permission under certain limited circumstances.

A Swedish humorist who goes by the name of J.D. California wrote a sequel to Salinger’s most famous work, “The Catcher in the Rye,” called “60 Years Later: Coming Through the Rye.” Salinger sued for copyright violation, even though parody is protected by fair use.

Last summer I gave Salinger a Boston Phoenix Muzzle Award for this outrage against free speech. I am, of course, under no illusions that Salinger ever knew or cared. What’s more disturbing is that the courts held up publication of “60 Years Later,” and that the case is still pending.

Let’s hope Salinger’s heirs drop the suit.

Good for speech, bad for democracy?

My heart is telling me one thing and my head another following the U.S. Supreme Court’s decision to remove political-speech restrictions on corporations and, by implication, labor unions.

On the one hand, I had been looking forward to this. I am close to being a First Amendment absolutist, and I gag instinctively at the idea that any form of political speech should be restricted, theories about corporate personhood aside.

On the other hand, we know what’s going to happen, don’t we? It’s bad enough that Congress can’t get health care right thanks to the doleful effects of corporate lobbying. And I do wonder why the Court had to overturn restrictions on corporations that extended back a century.

For the time being, I’m going to punt, and link to an article I wrote for the Boston Phoenix in 2003 on a corporate-speech case involving Nike.

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

Picturing a $200 million high school

Those of you with good memories may recall that, last summer, Newton Mayor David Cohen barred the press from touring the city’s brand-new, $191 million Newton North High School. Later, he relented and allowed a reporter to take a look — but not a photographer.

Well, yesterday, as his time in office winds down to its final weeks, Cohen at long last allowed full media access to the school. The Newton Tab was even allowed to shoot a video.

Though it’s certainly positive that the press was finally able to take pictures, there was never any excuse for Cohen’s censorious behavior. The public deserved to see long before now what it was getting for the nearly $200 million it paid in tax money, either directly (through local property taxes) or indirectly (via state assistance).

Coakley gets it wrong on shield law

Martha Coakley
Martha Coakley

Bill Densmore has posted a crowdsourced Q&A with Massachusetts Attorney General Martha Coakley, a Democratic candidate for the U.S. Senate. (Disclosure: As you’ll see if you read it all the way through, I helped with one of the questions.)

I have not read the entire interview, but I did read her answer to a question about whether she would support a federal shield law to protect journalists who are ordered to reveal their confidential sources.

Coakley’s answer is troublesome, as she replies that she supports protection for “bona fide journalists.” I take that to mean card-carrying members of the mainstream media.

I am dubious of shield laws, and believe an absolute law would likely be ruled unconstitutional. At most, shield laws should require a judge to rule on whether a journalist’s testimony is necessary and if there might be some alternative way of getting the same information, as outlined by U.S. Supreme Court Justice Potter Stewart in the 1972 Branzburg v. Hayes decision. (Alas, Stewart was on the losing side, and his proposed balancing test has led a tortured existence.)

But whatever is protected, it ought to be journalism, not journalists. If an amateur blogger is engaging in journalism, then she should have just as much protection as a press-pass-wielding reporter. The test shouldn’t be who you are — it should be what you do.

ACLU lawyer explains libel and SLAPP

Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:

The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the SLAPP suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.

In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.

My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.

Earlier coverage.

Live-blogging the anti-SLAPP hearing

I’m watching the anti-SLAPP hearing here. Background on the case here.

And that’s a wrap. The Supreme Judicial Court will consider the arguments it heard this morning and issue a decision at some later time. It strikes me that the questions were equally tough for both sides — that Harvey Shapiro, the lawyer for journalist-activist Fredda Hollander, and Bruce Edmands, the lawyer for developer Steven Fustolo, were kept on the defensive during their arguments. No way of saying how this will come out.

To repeat my disclosure: I was paid by Fredda Hollander to write an affidavit (pdf) for her during an earlier stage of the case.

10:03 a.m. Edmands says Shapiro is correct that the media are covered in California, but the law is very different. If Shapiro wants anti-SLAPP protection extended to the media in Massachusetts, Edmands says, then “the correct forum is not this court, respectfully, but the Legislature.”

10:01 a.m. What about letters to the editor? asks one of the justices. Isn’t that petitioning? “It doesn’t have to go directly to the government body. Every official in town reads it,” he says. Edmands responds that letters are “widely understood to be expressions of opinion by the author,” unlike “factual” news stories.

The justice follows up by asking if the publisher wouldn’t be “petitioning” by publishing the letter. Edmands replies that it would be, but that the publisher should be treated differently from a reporter.

9:57 a.m. Edmands says the anti-SLAPP statute has never been extended to the media. It’s pointed out to him that a Superior Court decision did just that. “Don’t knock the Superior Court,” says one of the justices. “Some of us are graduates of the Superior Court.”

9:55 a.m. To clarify — Hollander and her husband, Bill Lee, were active in a North End neighborhood organization. She contends that her journalism for the Regional Review was an extension of that activism.

9:53 a.m. Justice asks what about a newsletter editor railing about an issue to his or her members. Edmands reponds that that would be closer to petitioning activity, but that’s not what Hollander did.

9:52 a.m. Edmands: “I think the statute was really intended to protect people who appear before governmental body … and speak out about their concerns.”

9:50 a.m. Now we’re hearing from Bruce Edmands, lawyer for developer Steven Fustolo, who’s suing Fredda Hollander for libel.

9:47 a.m. Justice asks if all investigative reporting would be covered. Purpose is “to cover something that is wrong so that the government will take action.” Shapiro replies that, yes, such reporting would be covered by anti-SLAPP law.

9:46 a.m. Justice asks if any other jurisdiction has adopted Shapiro’s interpretation. Shapiro replies that California anti-SLAPP law covers First Amendment activity. “They have uniformly covered journalists.” But he concedes the California law is broader in terms of activities that are protected.

9:43 a.m. Justice says applying anti-SLAPP to newspaper reporter is “a whole different kettle of fish.” Shapiro responds that “it embraces broader concepts of petitioning.” He adds: “Using the press is a fundamental form of petitioning.”

9:40 a.m. The justices are concerned that Shapiro’s interpretation would obliterate libel if anti-SLAPP can be invoked.

9:39 a.m. The justices question Shapiro about the lack of a personal stake journalists generally have in the stories they cover, whether they express an opinion or not. The idea is that the anti-SLAPP law generally covers only political activists with a stake in the outcome.

9:37 a.m. Justice asks Shapiro if community newspapers should be treated differently from the Globe or the Herald. Shapiro responds that if the reporter is writing in a way that “enlists public support,” then that is “petitioning activity” and should be covered.

9:36 a.m. Harvey Shapiro, lawyer for Fredda Hollander, is arguing before the state’s Supreme Judicial Court right now.

My affidavit in the anti-SLAPP case

Fredda Hollander, an activist-journalist who will appear before the state’s Supreme Judicial Court on Monday, has given me permission to post the affidavit (pdf) I wrote for her at an earlier stage of her case. It’s a public document, but given that I was paid to write it, I wanted to check in with her first.

The issue at stake is fairly complicated, and really doesn’t have all that much to do with libel, even though her claim is related to a libel suit filed against her. A North End developer, Steven Fustolo, is suing Hollander for libel in connection with articles she wrote for a local newspaper, the Regional Review. Hollander counters that she did not libel Fustolo, and that his suit is a form of harassment covered by the state’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public participation.”

The anti-SLAPP statute — similar to ant-SLAPP laws in other states — is designed to protect political activists from being harassed by their well-heeled targets, who can afford to abuse the legal system as a form of intimidation. The law specifically states that “petitioning” activity is protected. Hollander’s lawyer, Harvey Shapiro, argues that the grassroots advocacy journalism Hollander engaged in qualifies as “petitioning” in the sense that she was attempting to influence government decisions.

The implications for bloggers and citizen journalists are potentially huge. Not only are such folks frequently motivated by their strong opinions on local issues, but they are far more vulnerable to being damaged by a meritless libel suit than would an established news organization. (Please note that I am not saying Fustolo’s suit is meritless. I am merely saying that, if it is, then Hollander deserves to be able to use the anti-SLAPP law in order to persuade a judge to dismiss his claim.)

Unfortunately I will not be able to attend Monday’s argument because of a family matter. Assuming all systems are go, I’ll be watching the webcast instead.