Category: First Amendment

A First Amendment hero-in-the-making

Michael Morisy

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

Phoebe Prince

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.

In New Hampshire, criminalizing political speech

Kelly Ayotte

New Hampshire Republicans have hit upon a novel idea to help U.S. Senate candidate Kelly Ayotte: lock up a pollster hired by one of her opponents for the crime of engaging in political speech.

According to the New Hampshire Union Leader, the state GOP, chaired by Gov. John Sununu, has asked Attorney General Michael Delaney to investigate an allegation of push-polling by a pollster hired on behalf of Democratic congressional candidate Paul Hodes.

Push-polling is the practice of asking leading, negative questions of a rival candidate’s likely supporters. According to the Union Leader, respondents who identified themselves as leaning toward Ayotte were asked about her alleged inaction regarding a mortgage scandal that unfolded when she was New Hampshire’s attorney general and her deletion of e-mails when she stepped down from that office.

The Union Leader found that the calls were made on Hodes’ behalf by Mountain West Research, an Idaho-based polling firm hired, in turn, by Anzalone Liszt Research, a national outfit whose clients include Hodes. The Hodes campaign hasn’t exactly denied the allegation.

Now, as it happens, negative push-polling is illegal in New Hampshire unless the pollster identifies the candidate on whose behalf the call is being made and provides some other information as well. That means someone — an executive of one of the polling firms, or perhaps even Hodes himself — could be found to have broken the law.

It’s not clear what the maximum punishment could be. The Union Leader reports that the top penalty is a $1,000 civil fine. But an Associated Press story that appears in today’s Boston Globe reports that Associate Attorney General Richard Head says a violation could also carry with it a one-year prison term.

The law itself is an affront to freedom of speech, and so is the Republican Party’s attempt to use it to silence the opposition. Push-polling is a sleazy, underhanded campaign tactic — which means that it’s exactly the sort of political speech the First Amendment was designed to protect.

We await Boston Herald columnist Howie Carr’s take on all this.

Photo (cc) by Travis Warren and republished here under a Creative Commons license. Some rights reserved.

Margaret Marshall’s legacy

Margaret Marshall

The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.

But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.

My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.

And speaking of Lewis, I’ve read two of his books on the First Amendment, and they are both first-rate: “Make No Law: The Sullivan Case and the First Amendment” and “Freedom for the Thought We Hate: A Biography of the First Amendment.” Highly recommended.

In Cambridge, a dubious balancing act

I have not yet read the report of the Cambridge Review Committee, which investigated last July’s arrest of Harvard University scholar Henry Louis Gates Jr. But unless someone tells me otherwise, I’m not sure I need to — the bottom line is enough.

According to news accounts, the committee found that both Gates and Sgt. James Crowley, the arresting officer, were to blame, and that each man missed opportunities to “de-escalate” the situation, which ended when Gates was arrested on disorderly-conduct charges. Those charges were quickly dismissed.

The only thing that strikes me as worth saying — again — is that Gates clearly lost it that day. But he was standing in his own home, believing (probably falsely) that he was the victim of racial profiling. Crowley had a badge, a gun and the certain knowledge that Gates was the resident, not an intruder.

Both men are not to blame. Crowley should have left.

Martin Finucane of the Boston Globe covers the story here, and Laura Crimaldi of the Boston Herald catches up with Gates’ lawyer, Harvard Law school professor Charles Ogletree.

Earlier coverage.

“Contempt of cop” and the Gates case

When Harvard scholar Henry Louis Gates was arrested and charged with disorderly conduct inside his own home in Cambridge last July, the incident struck many of us as being less about race than about the right of someone who had done nothing wrong to mouth off to a police officer.

Now comes the New England Center for Investigative Reporting, which has a story in today’s Boston Globe showing that what happened to Gates was part of a pattern in Cambridge. Though the center found no evidence of racial profiling, it did find that the majority of people charged with disorderly conduct from 2004 to ’09 were arrested because of something they said. A key excerpt:

The most striking conclusion of the review of Cambridge police data is that the majority of those arrested for disorderly conduct were allegedly yelling, often screaming obscenities, in front of police before the handcuffs snapped shut. More than 60 percent of the disorderly arrests reviewed by center involved some sort of allegedly inflammatory speech, such as talking back to the police, more commonly known as “contempt of cop.’’

Gates, as you recall, was arrested by Sgt. James Crowley, who had been dispatched to Gates’ home following a report that two men had been seen trying to force their way in. (Gates and his taxi driver had forced open a stuck door.) Gates, apparently believing he’d been racially profiled, exchanged words with Crowley, though the two disagree over exactly what was said.

We’re still waiting to hear why Crowley wrote in his report that a witness told him at the scene that two black men were observed trying to get in. The woman later said she made no mention of race when she called the police station, and that she never spoke directly with Crowley, as he claimed. Perhaps that will be explained in a report by a city task force, which, according to the Cambridge Chronicle, could be released any day now.

Keeping public records public

In 1989, Justice John Paul Stevens, writing for a unanimous Supreme Court, ruled that public records can cease to be public once they’ve been compiled into a computerized, easy-to-access database.

Now the Court is hearing a case with some eerie similarities involving the names of people who sign petitions to place public-policy questions on the ballot. In the Guardian this week, I compare the two cases — and hope that Stevens, as one of his final acts before retiring this summer, will help keep public records public.