Category: First Amendment

The NH political-ad story is getting weirder and weirder

Photo (cc) 2008 by Andrea Maria Cannata

The saga of Debra Paul, the New Hampshire newspaper owner charged with a crime for publishing political ads without the required disclosure, is getting weirder and weirder.

Friend of Media Nation Aaron Read has been doing some digging, and I’m sharing some of what he posted on Facebook. It turns out that in addition to owning the Londonderry Times and another paper, Paul is a member of the town council. In February 2021, her fellow councilors complained about an editorial she published, saying she had engaged in “bullying” for writing, “Are you frustrated that nobody at town hall is listening to you? Do you feel that your town or school officials have an excuse for everything or justify decisions you don’t agree with?”

According to Julie Huss of The Eagle-Tribune, Paul replied that the editorial ran in both of her papers covering four towns, and that her words were not specifically directed at her colleagues in Londonderry.

The Daily Caller, a right-wing outlet founded by Tucker Carlson, picked up on the story a couple of days ago. Arjun Singh, citing the Derry News, reports that two of the candidates whose ads were not properly labeled were running for the school committee on so-called parents’-rights platforms. Singh also writes: “The Attorney General’s office began investigating Paul after a tip from Laura Morin, a mental health counselor with the Greater Nashua Mental Health Council, which works with schools near the Derry area, according to the arrest warrant.”

Morin appears to be a “dear friend” of the town clerk, Sherry Farrell. And in March 2018, Paul’s paper published a story about illegal political lawn signs in Londonderry that had been investigated by the state attorney general’s office. Farrell’s signs were among those targeted for lacking proper disclosure information.

It all sounds pretty incestuous. And yes, it is a massive conflict of interest for Paul to publish a paper in the same town where she’s serving as an elected official. But that doesn’t change the fact that Attorney General John Formella really needs to find something better to do with his time. It would be one thing if these political communications were aimed at deceiving people, but they were not. No harm was done. Yet Paul faces at least the theoretical possibility that she could be hit with a heavy fine and a prison term.

Earlier:

Here’s the arrest warrant in the NH illegal-advertising case

Here is the arrest warrant in the Debra Paul illegal-advertising case. It doesn’t change my understanding of the facts, but the details and the context are interesting.

Earlier:

A NH newspaper publisher is arrested and charged with running illegal political ads

In a bizarre case that raises important First Amendment issues, a New Hampshire newspaper owner has been arrested and charged with publishing political ads that the state attorney general’s office claims failed to comply with disclosure laws.

According to Nancy West of InDepthNH, the ads failed to include the words “Political Advertisement,” which is a violation of state law. The publisher, Debra Paul of the Londonderry Times, faces six misdemeanor counts. If she’s found guilty, she could be fined $2,000 or even sentenced to prison for a year. “I would like to think the attorney general’s office has more important matters to deal with than to send press releases out on misdemeanors such as this,” Paul said, according to West. “With multiple unsolved homicides over the past year, this seems a bit absurd.”

According to a statement issued by the office of Attorney General John Formella, the charges involve incidents dating back as far as 2019:

Ms. Paul, publisher of the Londonderry Times newspaper, was previously investigated and warned against such conduct on two prior occasions by the Attorney General’s Office Election Law Unit. Those instances ended with formal letters being issued to her in 2019 and 2021. A ‘final warning’ letter issued by the Election Law Unit in September of 2021 warned Ms. Paul that all political advertising must be properly labeled as such in her publication.

Paid advertising — even political advertising — is a form of commercial speech, and thus doesn’t carry with it the same protections as other forms of speech. Nevertheless, the case against Paul seems absurd. I flipped through the most recent PDF edition of the Londonderry Times and found a couple of political ads, including the one I’ve embedded here. It’s properly labeled; I’m sure at this point Paul would just as soon avoid a seventh count. But if it didn’t say “Political Advertisement,” would you think it’s anything other than a political ad? Of course not.

At the very least, New Hampshire law ought to recognize whether there was an intent to deceive. There is obviously no deceptive intent here. And Formella has placed himself in the running for a 2023 New England Muzzle Award. Paul is scheduled to be arraigned on Oct. 19. Not only should the judge immediately dismiss the charges against Paul, but they should also sanction the attorney general.

A federal judge deals a huge setback to Nicholas Sandmann’s legal crusade

Nicholas Sandmann, the former Kentucky high school student who sued multiple media organizations after he was described as “blocking” a Native American activist in Washington, has just lost big-time. On Tuesday, a federal district court judge threw out his libel claims against The New York Times, CBS News, ABC News, Gannett and Rolling Stone. Erik Wemple of The Washington Post tweeted out the news Tuesday night:

Judge William Bertelsman granted summary judgment, which means that he found Sandmann’s case so lacking that it should not proceed to a full trial, according to Hailey Konnath of Law360.

Sandmann achieved fame and notoriety in 2019 when he and his fellow students at Covington Catholic High School were confronted by a Native American activist named Nathan Phillips while they were demonstrating against abortion rights. Videos of the scene showed Sandmann wearing a “Make America Great Again” cap and standing his ground, apparently refusing to move for Phillips, who got extremely close to Sandmann while beating a drum.

Phillips told reporters that Sandmann “blocked my way and wouldn’t allow me to retreat,” a statement that formed the basis of Sandmann’s libel suits. Judge Bertelsman ruled that Phillips’ words were a matter of opinion, not fact, and that opinion that can neither be proved true or false was protected under the First Amendment. Bertelsman wrote that

a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.

Sandmann had already settled out of court with The Washington Post, CNN and NBC News — actions I hope they now regret. Deep-pocketed media defendants in libel suits should refuse to settle when weak claims are filed against them lest they provide an incentive for others to file similar suits.

Sandmann’s lawyer says he plans to appeal. But of course.

Should a media defendant be able to keep sources confidential in a libel suit?

Everett Square circa 1905. Photo is in the public domain.

Adam Gaffin has a wild story in Universal Hub about a lawsuit filed against the Everett Leader Herald and the city clerk by Everett Mayor Carlo DeMaria. There are all kinds of entertaining details. Among other things, we learn that the Leader Herald “has referred to DeMaria as ‘kickback Carlo,’ said he is ‘on the take,’ and referred to ‘DCF,’ or ‘DeMaria’s Crime Family.’”

What caught my eye, though, was that the Leader Herald has agreed to go along with a court order to identify 10 of 12 confidential sources. The names had previously been given to Superior Court Judge James Budreau, who ruled that their claim to anonymity was weak. In the following excerpt from Budreau’s opinion, Resnek is a reference to Joshua Resnek, the publisher and editor.

A threshold question facing the Court is whether Defendants have insufficiently supported their claim that the 12 sources used by Resnik [sic] in the articles core to this litigation were given a promised [sic] of confidentiality in exchange for their information…. Defendant Resnek subsequently filed an affidavit which states that all the sources at issue had “provided information to me based on the promise/understanding that their names/identities would not be revealed and would be kept confidential.” Not only does this averment lack specificity for each of the 11 [?] alleged confidential sources, but it’s unclear whether each source was promised or merely understood or believed that their identities would not be disclosed. If they understood, what was the basis of their understanding?

In other words, the judge concluded that Resnek failed to make a strong case that the sources had been granted confidentiality in the first place. Perhaps that will take the sting out of Resnek’s decision to go along with the judge’s order and allow those sources to be publicly identified.

The problem of keeping sources confidential in a libel case is reminiscent of a dilemma that The Boston Globe faced in 2002, when the paper was sued by Dr. Lois Ayash for incorrectly identifying her as the “leader of a team” that signed off on an overdose of an experimental chemotherapy drug that was given to two patients at Dana-Farber Cancer Institute. One of those patients was Globe reporter Betsy Lehman, who died as a result of the overdose.

In that case, the Globe refused an order by Superior Court Judge Peter Lauriat to reveal his confidential sources. Lauriat ruled that, because Ayash did not have the evidence she needed to pursue her suit — evidence to which she was entitled as a matter of law — then she should win her case by default.

“The Boston Globe, long a champion of the freedom of information and of unfettered access to public (and even not-so-public) records, has unilaterally and unnecessarily interrupted the free flow of information that may be critical to Ayash,” Lauriat wrote, according to an account by the Reporters Committee for Freedom of the Press. A jury awarded her $2 million, a judgment that was upheld by the state’s Supreme Judicial Court in 2005.

Richard Knox, the Globe reporter whose story was at issue in Ayash’s libel suit, thought the court should have respected his promise not to identify his confidential sources. “I’m disappointed that the courts don’t understand that honoring commitments to sources goes to the heart of what journalists do every day,” he was quoted as saying.

But though Knox and the Globe may have acted out of principle, they were mistaken to think that should have come without a cost. In fact, there is no ironclad legal right for journalists to protect their confidential sources. I’d say that Judge Lauriat made the right call in demanding that the Globe give up its sources; after all, Ayash was entitled to make her best case. The Globe also made the right call, expensive though it was, by saying no.

The situation in Everett, by contrast, is weird and hard to parse. Is Resnek really breaking a promise of confidentiality if the guarantees he made to his sources were not plainly stated, as Judge Budreau suggests? Needless to say, it will be interesting to see what those sources have to say.

Ron DeSantis, public education and the authoritarian impulse

Ron DeSantis. Photo (cc) 2017 by Gage Skidmore.

Update: CNN fact-checker Daniel Dale reports that faculty and students would not be required to answer the survey, although colleges and universities will be required to administer it.

There isn’t a high-ranking elected official in the country today who embraces repression more than Gov. Ron DeSantis of Florida.

DeSantis, a Republican who’s positioning himself to run for president in 2024 if Donald Trump doesn’t — or maybe even if he does — has a particular fixation on education, pushing through the state’s notorious “don’t say gay” law (which prohibits classroom instruction about sexual orientation and gender identity) and, through his allies, banning three professors at the University of Florida from serving as expert witnesses in a lawsuit against the state involving its restrictive voting-rights law (he backed down).

The latest outrage is a bill DeSantis signed into law this week that requires public universities to conduct a survey in which faculty members and students would be required asked to reveal their political beliefs. As Ana Ceballos reports in the Tampa Bay Times, the measure is part of DeSantis’ ongoing war against leftist beliefs on campus, and that “budget cuts could be looming if universities and colleges are found to be ‘indoctrinating’ students.” She quotes DeSantis as saying:

It used to be thought that a university campus was a place where you’d be exposed to a lot of different ideas. Unfortunately, now the norm is, these are more intellectually repressive environments. You have orthodoxies that are promoted, and other viewpoints are shunned or even suppressed.

Writing in Salon, Brett Bachman adds: “Based on the bill’s language, survey responses will not necessarily be anonymous — sparking worries among many professors and other university staff that they may be targeted, held back in their careers or even fired for their beliefs.”

Freedom of expression on college campuses has become a crusade on the right — yet it seems that the more grotesque examples of campus censorship come from the right, whether it be a campaign to delay tenure for the 1619 Project journalist Nikole Hannah-Jones at the University of North Carolina, to Trump’s threat in 2019 to cut federal funds to institutions that failed to protect free speech as defined by him, to DeSantis’ various outbursts.

DeSantis is one of the most dangerous politicians in the U.S. — a smarter, more disciplined Trump who might very well win the 2024 election, especially given the media’s desire to normalize him and get back to the business of covering politics like a sporting event. His attempts to silence the academy ought to serve as a signal as to what he’s really all about: the unsmiling face of authoritarianism.

Texas newspaper publisher John Garrett tells us why ‘Print Ain’t Dead’

John Garrett

On this week’s edition of the “What Works” podcast, Ellen Clegg and I talk with John Garrett, who, along with his wife, Jennifer, started the monthly Community Impact Newspaper in 2005 in Texas. They had three full-time employees and covered two towns in Texas, Round Rock and Pflugerville.

Community Impact expanded into Arizona and Tennessee, and by 2018, Forbes reported, the Garretts had 220 employees and annual revenue of $27 million. They have an online presence, of course, but they also believe in print: their newspapers are distributed by mail every month. They even opened their own printing plant to handle their newspaper and other jobs and have a sign out front that says: “Print Ain’t Dead.”

But as we prepared for this podcast, John told us they’ve just made some tough decisions. They sold their Phoenix operations and closed their small Nashville outlet. They’ve decided to focus on Texas, where their business is doing well, and they have fresh plans for the future there.

Ellen and I devote the entire Quick Takes segment of the podcast to the New England Muzzle Awards, a Fourth of July roundup of outrages against freedom of speech and of the press in the six New England states. The awards were conceived of by my friend and occasional collaborator Harvey Silverglate, the noted Boston civil-liberties lawyer. For many years, they were published by the late, lamented Boston Phoenix. They’ve been hosted by GBH News since 2013, and this year marks their 25th anniversary.

You can listen to our conversation here and subscribe through your favorite podcast app.

The 2022 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Illustration by Meryl Brenner / GBH News

A Boston mayor who trampled on a religious group’s right to freedom of expression. A Worcester city manager who trampled on the public’s right to know about police misconduct. A New Hampshire state legislator who trampled on teachers’ rights by demanding that they take a “loyalty oath” promising not to teach their students about racism.

These are just a few of the winners of the 2022 New England Muzzle Awards.

This year is the 25th anniversary of the Muzzles, a Fourth of July roundup of outrages against freedom of speech and of the press in the six New England states.

Read the rest at GBH News.

Incitement, Anthony Lewis and the toxic stew that inflamed the Buffalo shooter

The late New York Times journalist Anthony Lewis, whose writings on the First Amendment are essential to understanding free speech and freedom of the press, wrote that the legal standard for incitement to violence may have swung too far in the direction of allowing just about anything. I wonder what he would have to say about the toxic right-wing stew in which the Buffalo shooter immersed himself — 4chan, according to reports, but reinforced by broader cultural developments in which Fox News and Trumper politicians have embraced virulent forms of racism.

In 1969, the Supreme Court ruled in Brandenburg v. Ohio that a Ku Klux Klan leader demanding “revengeance” against Black people and Jews did not engage in incitement because his threat was non-specific. That is, he didn’t urge the mob he was addressing to march down the street and attack the first African American they came across. The idea was that the threat had to be “directed at inciting or producing imminent lawless action” is “likely to incite or produce such action” in order for it to rise to the level of incitement.

Did the court go too far? In his 2007 book “Freedom for the Thought That We Hate: A Biography of the First Amendment,” Lewis surveyed the landscape of the early 2000s and wrote this:

In an age when words have inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in Brandeis’s phrase, should be good ones. The law of the American Constitution allows suppression only when violence or violation of law are intended by speakers and are likely to take place imminently. But perhaps judges, and the rest of us, will be more on guard now for the rare act of expression — not the burning of a flag or the racist slang of an undergraduate — that is genuinely dangerous. I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging. That is imminence enough.

The Brandenburg standard came into being only after many decades of evolution toward a less stringent understanding of incitement, beginning with Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. articulated the “clear and present danger” test. The decision, which includes Holmes’ famous admonition that you can’t falsely shout “fire” in a crowded theater, is widely reviled today, but it represented a step forward: It was the first time the court suggested that speech couldn’t be punished unless it presented such a danger.

If Schenck didn’t go far enough, perhaps Brandenburg, as Lewis writes, went too far. How can we redefine incitement in the age of social media? Breaking the connection between speech and action would have the effect of outlawing hate speech, which is currently regarded as coming under the protections of the First Amendment. Should we go down that road? Can we trust the current Supreme Court to do it in a way that addresses the problem without creating collateral damage? What unintended consequences would there be?

We have a horrendous mess on our hands. Hate speech on the internet presents dangers unlike anything we have dealt with before. As someone who’s pretty close to being a free-speech absolutist, I have real problems with any new government restrictions. But I do find it interesting that no less a friend of the First Amendment than Anthony Lewis had reservations about incitement. And Lewis was writing before social media and the dark web had gotten much traction.

We need a national conversation. Sadly, we are at a moment when we are ill-equipped for such an exercise.

The Buffalo horror raises thorny issues about hate speech and the media

Image via Today’s Front Pages at FreedomForum.org.

Correction: An earlier version of this post identified 4chan’s hosting service. In fact, it was a porn site that uses the name 4chan but is otherwise unrelated.

Our thoughts at this time need to be with the Black community of Buffalo — and everywhere — as we process the horror of one of the worst mass murders of recent years. We need to do something substantive about guns, racism and white supremacy. What actually happened, and what we can do to prevent such horrific events from happening again, must be at the top of our agenda.

This blog, though, is primarily about the media and often about free speech. So let me address some of the secondary issues. The shootings intersect with notions of hate speech, social media and the role of Fox News in mainstreaming dangerous racist ideologies such as so-called replacement theory, which holds that the left is trying to push out white people in favor of non-white immigrants in order to obtain an electoral advantage.

First, keep in mind that hate speech is legal. The New York Times today says this about New York Gov. Kathy Hochul:

When pressed on how she planned to confront such hate speech online, without impinging on First Amendment rights, Ms. Hochul noted that “hate speech is not protected” and said she would soon be calling meetings with social media companies.

Hochul is wrong, and the Times shouldn’t have used “noted,” which implies that she knows what she’s talking about. If hate speech were illegal, Tucker Carlson would have been kicked off Fox long ago.

What’s illegal is incitement to violence, and you might think whipping up racist hatred would qualify. In fact, it does not — and the very Supreme Court case that made that clear was about a speaker at a rally who whipped up racist hatred. Brandenburg v. Ohio (1969) held that a ranting Ku Klux Klan thug demanding “revengeance” against Jews and Black people had not engaged in incitement because his threats were non-specific.

Hochul can cajole and threaten. And she should. But it’s going to be difficult to do much more than that.

As for the media themselves, that’s a morass, and it’s too early to start sorting this out. But the shooter reportedly fell down the 4chan hole during the pandemic, immersing himself in the racism and hate that permeate the dark corners of the internet. There are a lot of moving parts here, but it seems unlikely that a young mass murder-in-the-making was sitting around watching Fox, even if some of his rants paralleled Carlson’s rhetoric. Fox’s role is to mainstream such hatred for its frightened, elderly viewers. The radicalization itself happens elsewhere.

So, are we going to ban 4chan? How would that even work? If the government tried to shut them down, they could just go somewhere else. I’m sure Vladimir Putin would be happy to play host.

4chan represents the bottom of this toxic food chain; Fox News is at the top. In the middle are the mainstream social media platforms — Facebook, Twitter, Twitch (which allowed the shooter to livestream his rampage for nearly two minutes before taking it down) and the like. It’s too early to say what, if anything, will happen on that front. But it’s probably not a good time to be a billionaire who wants to buy Twitter so that there will be less moderation on the platform than there is currently.

As it turns out, that billionaire, Elon Musk, may be backing away.