Then-Sen. Kamala Harris. Photo (cc) 2019 by Gage Skidmore.
No sooner had I uploaded a post about Donald Trump, JD Vance and whether their promotion of lies about pet-eating immigrants amounted to incitement than we were treated to an example of something closer to actual incitement.
On Sunday, the Libertarian Party of New Hampshire posted on Twitter/X: “Anyone who murders Kamala Harris would be an American hero.” According to NBC 10 Boston, they took the post down a short time later — not because they had any second thoughts, mind you, but because “we don’t want to break the terms of this website we agreed to. It’s a shame that even on a ‘free speech’ website that libertarians cannot speak freely. Libertarians are truly the most oppressed minority.”
In response to a request for comment, a spokesperson for the state’s Libertarian Party said the organization “believes that the journalists at the Boston Globe are as evil as rapists or murderers.”
“A proper society would exclude Globe Journalists from residing within it entirely,” Jeremy Kauffman wrote in an email.
Good Lord. I was actually aware of all this Sunday morning but refrained from writing anything because I couldn’t be sure if the Libertarians’ Twitter account had been hacked. Now we know that they’re proud of their hateful, dangerous rhetoric. It will be interesting to see whether there are any legal repercussions given that the threat against Harris comes closer to the legal definition of incitement than anything Trump or Vance said. Then again, it may still fall short of the imminent-threat language contained in Brandenburg v. Ohio.
Also on Sunday, a would-be assassin was taken into custody at Trump’s Florida golf course just two months after he was shot at during a rally in Pennsylvania.
And, finally, the U.S. Justice Department has charged two alleged neo-Nazis of publishing an assassination “hit list” whose potential targets included former U.S. Attorney Rachael Rollins.
We are living through a terrifying moment, and it’s not going to end on Election Day.
JD Vance: “Keep the cat memes flowing.” Photo (cc) 2023 by Gage Skidmore.
Over the past week, former President Donald Trump and his running mate, Ohio Sen. JD Vance, have been inciting threats and possible violence against the Haitian community in Springfield, Ohio, by advancing false claims that Haitian immigrants are grabbing people’s pets off the street and eating them.
Unfortunately, there’s not much that can be done to bring Trump and Vance to heel. As I’ve written before, there is virtually no enforceable law against incitement in the U.S., even though it’s one of just three categories of speech that may be censored, the others being serious breaches of national security and obscenity.
Although lies about pet-eating had been moving through the nether reaches of the online right for a while, Trump super-charged those lies last Tuesday in his disastrous (for him) debate against Vice President Kamala Harris. Here, again, is what he said: “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there. And this is what’s happening in our country. And it’s a shame.”
New Hampshire Statehouse in Concord. Photo (cc) 2011 by Teemu008.
The New Hampshire Supreme Court has ruled that an op-ed piece published in the New Hampshire Union Leader claiming that a resident of Hanover had espoused “white supremacist ideology” was not libelous. The reason: the writer was expressing an opinion rather than making a factual assertion.
According to Grace McFadden of New Hampshire Public Radio, the plaintiff, Daniel Richards, sued the Union Leader and op-ed writer Robert Azzi for a piece that Azzi wrote in 2021 lumping Richards with former Republican politico Newt Gingrich and several others. Azzi castigated them for trying to keep anti-racist instructional materials out of the public schools. (Note: NHPR renders the plaintiff’s name as “Richard,” but it appears as “Richards” in the original op-ed and in court documents.) The passage at issue:
Desperate to stay bonded to America’s original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology to keep Americans from learning an unexpurgated American history from its 1619 origins alongside the dominant White 1776 narrative.
Richards appealed to the state’s highest court after losing at a lower level. Richards had attracted Azzi’s attention by submitting public testimony in favor of a bill prohibiting some classroom discussions about race, according to the NHPR story. The bill passed but was later thrown out by a federal court judge. The state Supreme Court said in its ruling:
Reading the op-ed as a whole, we agree with the trial court that the op-ed merely expressed the author’s political opinions and beliefs that he individually held about the plaintiff and others not based on any undisclosed defamatory facts.
Azzi and the Union Leader were assisted in their defense by way of an amicus brief from the ACLU of New Hampshire, the New England First Amendment Coalition and GLBTQ Legal Advocates & Defenders.
It’s a basic part of libel law that opinion is protected speech. Although it’s possible to run afoul of the law by stating a false fact within an opinion article, opinions are not by themselves actionable. As an illustration of that principle, the Supreme Court approvingly quoted the ruling by the lower court, which found that Azzi’s op-ed could not be found libelous because “whether a statement espouses white supremacist ideology is a matter of socio-political opinion that differs between individuals.” Yet the very fact that this case has been hanging around since 2021 shows how even futile legal actions can chill free speech and the free press.
As Gilles Bissonnette, legal director of the ACLU of New Hampshire, put it in a statement: “People and the press — despite pressure and intimidation from those with financial resources who vehemently disagree with them — have a First Amendment right to voice their opinion without fear of litigation from those who seek to stifle criticism.”
Richards also sued for invasion of privacy, and that claim was thrown out as well.
The Internet Archive has lost again in its bid to continue offering access to e-books for free and without any compensation to publishers or authors.
The U.S. Court of Appeals for the Second Circuit, based in New York, ruled on Wednesday that U.S. District Court Judge John Koeltl had acted correctly in finding for four major book publishers who sued the Archive for copyright infringement. Emma Roth has the story at The Verge.
The nonprofit Archive is one of the most useful corners of the internet, offering free access to web pages that otherwise would have disappeared and working with copyright holders to keep defunct publications available for viewing — such as, for example, The Boston Phoenix, one of my former haunts.
But the Archive chose a very odd hill to defend by insisting that it had a right to offer e-books without paying for a license from publishers, as libraries typically must do. The Archive claimed that it was in compliance with copyright law because it limited e-book borrowing to correspond with physical books that it had in its collection or that was owned by one of its partner libraries. That’s not the way it works, though.
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As the appeals court’s decision observes, public and academic libraries must purchase licenses for e-books even though they also hold physical copies of those books. “Critically, IA [the Internet Archive] and its users lack permission from copyright holders to engage in any of these activities,” according to the decision. “They do not license these materials from publishers, nor do they otherwise compensate authors in connection with the digitization and distribution of their works.”
The Archive claimed a fair-use exception to copyright law, a four-part test that the courts apply to determine whether copyrighted material can be used without permission. The court ruled in favor of the publishers on all four tests, mainly because the Archive had copied books in their entirety rather than just excerpts and because that practice could harm the potential market for those books. The decision concludes with some fairly harsh language:
IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.
The Archive has responded by removing some 500,000 books from its online library, explaining:
We understand that this is a devastating loss for our patrons, and we are fighting back through the courts to restore access to these books. Fortunately, other countries and international library organizations are moving to support controlled digital lending. We appreciate your patience and understanding as we fight this long battle.
I’m not sure what legal steps are available to the Archive other than appealing to the Supreme Court. Given that both Judge Koeltl and the Court of Appeals simply applied existing copyright law in a straightforward manner, it’s hard to imagine that the Supremes would be interested unless they possess some previously undetected enthusiasm for upending the law in its entirety.
My views should not be taken as a value judgment. The folks at the Internet Archive have always been among the good guys of digital culture — one of the last pure outposts from the early days of internet idealism, along with Wikipedia and very few others. The giant book publishers simply want to maximize their profits, and authors are not going to benefit from Wednesday’s decision outside a few bestselling behemoths at the top. Journalist Dan Gillmor put it this way on Mastodon:
Others have said this, but the Internet Archive’s appeals-court loss to Big Publishing is a disaster for everyone but the cartel of companies and a tiny number of A list authors.
The publishers will tolerate libraries only as long as they can control everything about how books can be loaned. If public libraries were being invented today, the cartel would make their core functions illegal.
The problem, though, is that it is the job of judges to apply the law, not offer a critique of capitalism.
There’s nothing in The Verge story or the Court of Appeals’ decision specifying what penalties the Archive will have to pay. I hope there are none. And though it’s probably too much to hope that the publishers will rethink their approach to e-books in their moment of triumph, they really ought to make some changes.
Digital distribution should have led to an increase in the availability of knowledge. Instead, it’s led to a regime of top-down control that is more restrictive than what prevails in the world of physical books. Try lending an e-book to a friend. That may be one of the reasons that e-books are declining in popularity while physical books are on the upswing.
All of this is playing out at a time when artificial intelligence companies are being sued for gobbling up vast quantities of text without permission. As Kate Knibbs writes for Wired:
The new verdict arrives at an especially tumultuous time for copyright law. In the past two years there have been dozens of copyright infringement cases filed against major AI companies that offer generative AI tools, and many of the defendants in these cases argue that the fair use doctrine shields their usage of copyrighted data in AI training. Any major lawsuit in which judges refute fair use claims are thus closely watched.
Needless to say, AI companies like ChatGPT, Meta and their ilk have far more power and resources at their disposal than a struggling nonprofit like the Internet Archive.
Donald Trump’s anti-free press, anti-First Amendment agenda follows a playbook (free link) designed in Hungary, India and Brazil, writes New York Times publisher A.G. Sulzberger in — uh, The Washington Post. Key excerpt:
As they seek a return to the White House, former president Donald Trump and his allies have declared their intention to increase their attacks on a press he has long derided as “the enemy of the people.” Trump pledged last year: “The LameStream Media will be thoroughly scrutinized for their knowingly dishonest and corrupt coverage of people, things, and events.” A senior Trump aide, Kash Patel, made the threat even more explicit: “We’re going to come after you, whether it’s criminally or civilly.” There is already evidence that Trump and his team mean what they say. By the end of his first term, Trump’s anti-press rhetoric — which contributed to a surge in anti-press sentiment in this country and around the world — had quietly shifted into anti-press action.
File this under “the wheels of justice grind slowly”: The former Kansas police chief who ordered an illegal raid against a newspaper office and two private homes one year ago has been charged with felony obstruction of justice.
The single charge against former Marion Police Chief Gideon Cody alleges that he knowingly or intentionally influenced the witness to withhold information on the day of the raid of the Marion County Record and the home of its publisher or sometime within the following six days.
For those of you who have been following this case from the start, the charge pertains to a restaurant owner whose driving records were obtained by the newspaper. The records were obtained legally, and the paper never actually wrote about them, but Cody claimed the paper violated the law because of a statutory quirk. It later turned out that the Record was investigating Cody’s wrongdoing at his previous job — something that was entirely unrelated to the restaurant owner.
Last month, former Record reporter Deb Gruver reached a $235,000 settlement in her federal lawsuit against Cody, whom she accused of grabbing her cellphone and injuring her hand.
Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.
Here are a few other developments on the local news front:
In New York City, WCBS-AM is ending its 60-year run as an all-news station, a move that The New York Times reports will claim 23 jobs. The station’s owner, Audacy, will continue with an all-news format on WINS-FM. New York is also the home of WNYC-FM, a large public station devoted to news and information.
Times Media Group, a newspaper chain based in Tempe, Arizona, has gone on a rampage of cuts at four weekly papers and a semi-monthly that it acquired in Southern California recently. Thomas Corrigan, who writes the Inland Empire MediaWatch newsletter, reports that editors at three of the weeklies have been fired and that the new owner has cracked down on freelance expenses as well. Corrigan observes that the papers will “lose years of institutional and community knowledge.”
Michael Aron, regarded as the dean of New Jersey’s press corps, has died at the age of 78. Aron spent the latter part of his career as a political reporter at NJ Spotlight News, one of the projects that Ellen Clegg and I write about in our book, “What Works in Community News.”
The fallout continues from an illegal police raid on a Kansas newspaper and two private homes last August. According to The New York Times, Deb Gruver, a former reporter for the weekly Marion County Record, has reached a $235,000 settlement as part of her federal lawsuit accusing then-Police Chief Gideon Cody of grabbing her cellphone and injuring her hand.
The Associated Press reports that Gruver’s lawsuit against two other officials continues. Nor is that the only legal action under way. Publisher Eric Meyer is suing local officials over the death of his 98-year-old mother, Joan Meyer, who was stricken a day after officers entered her home and rifled through her property.
Among the most toxic behaviors that we often see in police officers is the tendency of some of them to overreact if they think they’re being disrespected. What they deserve, as public servants doing a difficult and dangerous job, is our cooperation. That doesn’t mean we have to like it.
Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a recent account in The New York Times, in February 2018 Riggen pulled over a driver named Gregory Bombard — twice — for giving him the finger. Bombard denied it, but then did, in fact, flip off Riggen and cursed. Bombard was arrested and charged with two counts of disorderly conduct, charges that were later dismissed.
It got worse. The Times story, by Sara Ruberg continues:
According to the lawsuit, which was filed in 2021, the police circulated Mr. Bombard’s mug shot to local news outlets after his arrest and towed his car from where he had pulled over. Lawyers representing him said that last Christmas the state police issued another citation ordering him to be arraigned on a disorderly conduct charge in connection with the 2018 episode after the dashcam footage of his arrest was circulated and the police received public pushback.
Bombard last month received a $175,000 settlement. And Riggen, who retired at the end of May, is receiving a New England Muzzle Award.
An account by Juan Vega de Soto for the nonprofit news outlet VTDigger includes some other details. After pulling Bombard over, Riggen admitted that he was probably wrong in thinking that Bombard had flipped him the bird — not that it should have mattered. Vega de Soto writes:
In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE [the Foundation for Individual Rights and Expression] made the dash cam footage of the arrest public late last year.
In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”
As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.
In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”
Bombard sued with the help of the Vermont ACLU and FIRE. As FIRE senior attorney Jay Diaz put it in a statement: “We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech.”
Now, admittedly, Bombard’s response to Riggen was not exactly the smartest thing he could have done. But it was protected by the First Amendment, and Riggen should have acted accordingly instead of punishing Bombard for failing to show him the respect his mistakenly thought he was entitled to.
On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.
Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:
There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.
Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.
Let’s count up the absurdities.
The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?
Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”
But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.
When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”
Two other points of note.
First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.
Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.
Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.
Former Mississippi Gov. Phil Bryant. Photo (cc) 2016 by Tammy Anthony Baker.
The nonprofit news organization Mississippi Today has filed an appeal with that state’s Supreme Court rather than turn over internal documents sought by former Gov. Phil Bryant, who’s suing Today over its Pulitzer Prize-winning investigation into a state welfare scandal.
It’s a high-stakes gamble: Mississippi recognizes only a very limited reporter’s privilege protecting journalists and news organizations from being ordered to identify anonymous sources and from producing documents. A lower court went along with Bryant, who argues that he is seeking evidence he needs in his attempt to prove that he was libeled by Today and its publisher, Mary Margaret White, a past guest on our “What Works” podcast. Today’s editor-in-chief, Adam Ganucheau, writes:
The Supreme Court could guarantee these critical rights for the first time in our state’s history, or it could establish a dangerous precedent for Mississippi journalists and the public at large by tossing aside an essential First Amendment protection.
As readers of Media Nation know, the U.S. Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not provide for a reporter’s privilege. Nevertheless, 49 states offer some form of privilege either through a law or a ruling by state courts. The sole exceptions are Wyoming and the federal government itself. (The latest efforts to create a federal shield law are currently stalled in the Senate.)
The reporter’s privilege in Mississippi, though, is extremely limited — so much so that Ganucheau doesn’t regard his state as having any privilege at all. The Reporters Committee for Freedom of the Press lumps Mississippi in with a group of states that have the lowest level of protection for journalism, including Idaho, Utah, Iowa, Missouri, Virginia and, sadly for us New Englanders, Massachusetts and New Hampshire.
In RCFP’s guide to the reporter’s privilege, Mississippi lawyer Hale Gregory writes that “there are no reported decisions from Mississippi’s appellate courts regarding the reporters’ privilege, qualified or otherwise,” but that several court orders by the state’s trial courts have recognized “a qualified privilege.”
Mississippi Today has emerged as a vital source of accountability journalism in our poorest state. Currently it’s partnering with The New York Times on an investigation into a county sheriff’s department that has already led to prison sentences for six deputies who tortured two Black men in their custody, and that could lead to a federal civil-rights lawsuit.
Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a 
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