Category: First Amendment

Mehanna verdict: Speech, actions or both?

Was Tarek Mehanna of Sudbury found guilty because of his loathsome but constitutionally protected free-speech activities on behalf of Al Qaeda? Or did the jury believe he actually engaged in terrorism, especially during a trip to Yemen, where prosecutors say he sought training?

I hope reporters covering the case will seek to interview every juror, because the answer is vitally important. Right now it’s hard to know whether the verdict was an outrage against the First Amendment or something quite a bit less than that. In following coverage of the trial, it was clear that prosecutors tried to conflate the two — using Mehanna’s expression of pro-terrorism views to prove he was an actual terrorist.

Boston Globe reporter Milton Valencia tweeted a little while ago, “Judging by verdict, this was more than 1st Amendment decision. Was also centered on Yemen trip. Found guilty of conspiracy to kill.”

Mapping the arrest of journalists at Occupy events

[googlemaps https://maps.google.com/maps/ms?msid=206048931241702581094.0004b3ac9ff0c9c0da722&msa=0&ie=UTF8&t=m&vpsrc=6&ll=38.410558,-96.679687&spn=47.614427,87.890625&z=3&output=embed&w=500&h=350]
Josh Stearns of Free Press has been tracking the arrest of journalists at Occupy events for the past several months. Now he’s put together a Google map with names, places and, where available, video. An interesting project and a valuable resource.

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

  • A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
  • A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.

Making sense of that journalists-aren’t-bloggers ruling

In my latest for the Huffington Post, I take a look at that bloggers-aren’t-journalists ruling in Oregon. And I argue that the case has nothing to do with the shield law, and everything to do with the dangerous cultural schism between journalists and the rest of society — and a judge who wants to widen it.

A new threat to online freedom of speech

Congress is coming after your Internet. Two proposals wafting their way through the House and the Senate would destroy the Internet as we know it, forcing some websites to shut down and others never to launch in order to avoid onerous penalties for copyright infringement.

As Dan Gillmor explains in the Guardian, the bills — known in the Senate as the Protect IP Act and in the House as the Stop Online Piracy Act — would end what is known as the “safe harbor” law. That law holds an Internet service harmless for hosting infringing material posted by a third party as long as it removes that material as soon as it receives notice from the copyright-holder.

Gillmor observes that YouTube never could have gotten off the ground if such a regime had been in effect at the time of its launching. “Congress is making common cause with a corporate cartel that wants to turn the Internet into little more than an enhanced form of cable television,” he writes.

According to Rebecca MacKinnon, writing in the New York Times, the proposals would set up blacklists to be administered by the U.S. attorney general, so that if a site were found to have infringed on copyright, it would essentially become invisible to anyone trying to find it. She compares the effect of the proposed law to the online censorship system that China uses, except that this one would be designed to protect the corporate interests of media companies rather than a government. MacKinnon argues that skittish businesses are already too eager to comply with takedown notices, and writes that the bills, if passed, could be used to suppress political debate:

Abuses under existing American law serve as troubling predictors for the kinds of abuse by private actors that the House bill would make possible. Take, for example, the cease-and-desist letters that Diebold, a maker of voting machines, sent in 2003, demanding that Internet service providers shut down Web sites that had published internal company e-mails about problems with the company’s voting machines. The letter cited copyright violations, and most of the service providers took down the content without question, despite the strong case to be made that the material was speech protected under the First Amendment.

Yesterday was American Censorship Day (sorry! I missed it!), and a number of sites blocked themselves to dramatize the effect of the proposals, according to the media-reform group Free Press.

Fortunately, David Kravets reports for Wired.com that a chief sponsor of the House bill, Rep. Lamar Smith, R-Texas, seemed to be having second thoughts during a three-and-a-half-hour hearing on Wednesday. But even a compromise could endanger the right to free speech if it empowers the government to act against individuals on behalf of corporations.

And let’s hear a shoutout for U.S. Rep. Ron Paul, R-Texas, a Republican presidential candidate who, as Gillmor notes, has come out against the House bill. I don’t believe the Obama administration has said a word. Sad to say, it doesn’t sound like the sort of thing this president would veto.

As a journalist, I rarely sign petitions. But I’m signing this as soon as I’m done writing, and I urge you to do so as well. The First Amendment is not a partisan cause.

Big Brother poster via Wikimedia Commons.

Talking up terrorism and the right to free speech

It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.

Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.

So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.

Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.

In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.

To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”

I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.

First Amendment rights and wrongs

In an effort to respect the First Amendment‘s guarantee of freedom of religion, the Upton selectmen have given short shrift to another provision of the First Amendment: “the right of the people peaceably to assemble.”

According to Jessica Heslam of the Boston Herald, the selectmen recently voted to reject a request by local Catholics to hold a “rosary rally” on the town common, citing the separation of church and state.

But as noted civil-liberties lawyer and Friend of Media Nation Harvey Silverglate tells Heslam, there is no constitutional problem with allowing a prayer rally on public property as long as other groups are accorded the same right of access. Another civil-liberties lawyer, Chester Darling, goes further, saying, “Those selectmen belong in federal court.”

Prediction: The selectmen are going to change their minds.

Update, Oct. 28: Well, that was fast.

Globe warns Occupy Boston on trademark

The Boston Globe is trying to stop the Occupy Boston demonstrators from using the paper’s name in its own publication, according to Metro Boston reporter Steve Annear. The protesters are planning to start a paper called the Occupy Boston Globe, similar to the Occupied Wall Street Journal in New York. (David Carr of the New York Times wrote about that last week.)

“We do not condone the use of our trademark-protected name and logo by any organization,” Globe spokesman Bob Powers is quoted as telling Annear.

Surely, though, the Globe’s lawyers know the Occupy Boston folks are within their legal rights. The Globe’s trademark prevents a would-be competitor from coming in and starting a newspaper called the Boston Globe. By contrast, the name “Occupy Boston Globe” is a parody of and a commentary on the Globe and on the media in general, expression that is protected by the First Amendment. A major consideration in trademark cases is whether readers might confuse the parody with the original. There doesn’t seem to be much chance of that.

Writing at BostInnovation, Lisa DeCanio reports that Occupy Boston Globe is trying to raise $8,000 to launch a daily and a full-color weekly, the latter of which would be published in English and Spanish. There’s already an online version of the paper, which in turn makes reference to a print edition. So maybe the presses have started to roll.

(Thanks to Greg Reibman, whose tweet alerted me to the Metro Boston story.)

An outrageous order of secrecy

Keep an eye on this one. Earlier this week, a clerk-magistrate in Suffolk Superior Court ruled that the details of criminal charges against former probation commissioner John O’Brien and Scott Campbell, who was a high-ranking aide to former state treasurer Tim Cahill, should be kept secret.

It was an outrage, done at the request of Campbell’s lawyer, and the office of Attorney General Martha Coakley has decided not to contest it. As Globe editor Marty Baron, whose paper is contesting the order, puts it:

If anything should be fully open to the public, it’s a court case involving allegations of malfeasance by a high-level public official. We feel an obligation to do our part to make sure the public gets the information it needs and deserves.

The Globe editorializes about the matter here.

Trust in government requires public access

During the weekend, more than 20 of the state’s daily newspapers, with support from the American Civil Liberties Union, Common Cause, the New England First Amendment Coalition at Northeastern University, the Massachusetts Newspaper Publishers Association and New England Newspaper & Press Association, published this editorial endorsing legislation to increase government transparency. A list of those newspapers can be found here. Media Nation is proud to lend its support.

The walls Beacon Hill has erected between itself and those it governs have taken on two dramatically different faces.

Outside, they show decades’ of wear at the hands of those fighting for better access to their government. Inside, they’re increasingly pocked with a taint that thrives in the absence of light.

That taint, most recently seen in a disturbing chain of high-profile corruption cases, suggests any benefits such barriers provide to the efficiency of lawmaking are grievously undermined by the efficiencies they also provide to those more interested in lawbreaking.

The felony convictions of three successive House speakers – and a Probation Department scandal that threatens to reach into every corner of public service – clearly indicate state transparency laws are in dire need of improvement.

Central to that effort is eliminating exemptions that free the governor’s office, Legislature and judiciary from having to live by the meeting and records laws that apply to every other public office in this state. Just as important is making it easier and more affordable for people to take advantage of the access already protected by a law that predates e-mail and the Internet.

It’s an area where minor advances have been made but substantive reform has been routinely killed or ignored.

Given recent scandals and polls showing a deep and growing distrust in government, we hope this year is different.

That notion will soon be tested on several fronts as lawmakers consider a number of initiatives.

One bill seeks to reduce the cost of obtaining records, requiring state agencies to make commonly sought public documents available electronically. It would also cut administrative costs and processing time associated with such records requests.

Another would strengthen the enforcement and investigatory powers of the Supervisor of Public Records.

A third would assess penalties against lawmakers who purposely skirt access laws and would cover the legal fees of those who successfully challenge them. And several seek to breach that battered and stained wall around Beacon Hill, subjecting the Legislature to the state’s Open Meeting Law.

Critics of the measures have focused on the financial and manpower burdens they impose on records keepers. Yet this push for more easily accessible records, already successfully implemented in other states, holds the promise of reducing those burdens.

House Speaker Robert DeLeo, following the June conviction of his predecessor, Salvatore DiMasi, vowed to regain voters’ faith in state government.

“Today’s news delivers a powerful blow to the public’s trust in government,” he wrote then. “One of the things that I find most disturbing – and the thing I am most committed to changing – is the public’s view of politicians and public sector employees.”

Fewer walls – legal, financial and technological – would go a long way toward that goal.

Photo (cc) by Andy Connolly via Wikimedia Commons.