Category: First Amendment

An Oklahoma Republican proposes regulation — and humiliation — for the press

Republican state Sen. Nathan Dahm of Oklahoma. Photo (cc) 2018 by Gage Skidmore.

Journalism is not a profession. As I tell my students, a profession has enforceable credentials and codes of ethics, often regulated by the government. You need a license to practice medicine or the law, or even to cut hair. But the First Amendment’s guarantee that “Congress shall make no law … abridging the freedom of speech, or of the press” ensures that anyone can practice journalism, whether it be a neighborhood gadfly with a Facebook page or a well-paid Washington reporter.

Finally, though, an Oklahoma state senator proposes to professionalize journalism and bestow upon us the dignity that we deserve. According to Graycen Wheeler, a Report for America corps member writing for the public radio station KOSU, State Sen. Nathan Dahm, a Republican, recently unveiled a bill that would require anyone working for a news organization to undergo a criminal background check and regular drug tests, and to obtain a license from the Oklahoma Corporation Commission. Reporters would also need $1 million in liability insurance and would be required to sit through eight hours of “safety training” offered by PragerU, a notorious right-wing education outfit.

Oh, and lest I forget, stories would have to be accompanied by the following language: “Warning: This entity is known to provide propaganda. Consuming propaganda may be detrimental to your health and health of the republic.” The bill, in case you were wondering, is called the Common Sense Freedom of Press Control Act, which certainly has a nice Orwellian ring to it.

Dahm, I should note, is also chair of the Oklahoma Republican Party. And as Walter Einenkel writes at Daily Kos, the legislation may stand little chance of passing, but it’s of a piece with other efforts in Oklahoma to ban books and to “target students who identify as ‘furries,’ ostensibly creating legislation based on debunked right-wing urban legends.”

The Oklahoma bill has raised eyebrows across the country — including in The Enterprise of Bourne, Massachusetts, where an unsigned editorial by editor Calli Remillard puts it this way: “We cannot say whether or not actually passing and implementing this legislation is the good senator’s true endgame, but it might not matter. Threats to the American free press are very legitimate and cropping up in seemingly all corners of the nation, and it takes one small spark to start a fire in a political climate as incendiary as ours.”

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A Mass. judge weighs whether to compel a journalist to turn over her interview notes

Photo (cc) 2017 by Allen Allen

An important press freedom case is playing out in a Dedham courtroom, where a prosecutor has asked a judge to force a reporter for Boston magazine to turn over her interview notes.

The magazine reporter, Gretchen Voss, wrote a lengthy article last September about Karen Read, a Mansfield woman who’s been charged with second-degree murder in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. The case is massively complicated and has become emotionally fraught, as supporters of Read have accused authorities of staging an elaborate coverup. Essentially, though, Read has been charged with running over O’Keefe with her SUV while under the influence of alcohol and leaving him to die in a snowbank. Read and her supporters counter that O’Keefe was severely beaten inside the Canton home of a fellow officer and dragged outside, where he died.

Ironically, a hearing into whether Voss would be compelled to turn over the notes of her interviews with Read was held on the same day that Congress took a rare bipartisan step toward granting journalists the right to protect their sources. More about that below.

According to an account by Ivy Scott and Travis Andersen in The Boston Globe, Norfolk District Attorney Michael Morrissey has asked Superior Court Judge Beverly Cannone to demand that Voss cooperate with the prosecution by producing her notes of what Read told her off the record. Voss replied that she would be willing to testify about the article that Boston published, but that going beyond that would be a violation of her First Amendment right to protect her sources. The magazine’s attorney, First Amendment lawyer Robert Bertsche, said the prosecution was demanding that Voss help them compile evidence to help with their case, “which was outside the scope of the law,” as the Globe summarized Bertsche’s argument.

“You can be sure if Karen Read confessed in her interview with Gretchen Voss,” Bertsche added, “that would have made it into the article.”

The Globe also quoted Assistant District Attorney Adam Lally as saying that there is “no reporter privilege in the Commonwealth of Massachusetts.” That’s true, but it’s also complicated.

Massachusetts is one of 49 states that offer some protection to journalists to protect their sources, either through a shield law or rulings by their state’s courts. (Wyoming, by the way, is the sole exception.) There is no shield law in Massachusetts, nor has the state’s Supreme Judicial Court ever ruled that there is a reporter’s privilege. But according to an overview compiled by the Reporters Committee for Freedom of the Press (RCFP), the courts in Massachusetts have recognized that journalists may have a limited right to protect their sources. The overview begins:

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter’s privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.

That balancing test is about as good as it gets in any state, since the reporter’s privilege is not absolute. Way back in 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment provides no such protection, although the convoluted ruling suggested that judges should balance concerns about press freedom with the need to compel testimony. What will happen in the Karen Read prosecution is that Judge Cannone will decide whether the information Voss has is so important to the case, and unobtainable from any other non-journalistic source, that she should be compelled to turn it over.

A complicating factor is that no journalist would cooperate with such a demand, leading to the possibility that Voss could be held in contempt of court. One of the more notable Massachusetts examples of that took place in 1985, when WCVB-TV (Channel 5) reporter Susan Wornick narrowly avoided a three-month jail sentence when the source she was protecting in a police corruption case came forward and agreed to cooperate with the prosecution.

As anyone who’s been following the Karen Read case knows, I’m only chipping away at a tiny piece of it. Also on Thursday, Read’s lawyers argued that correspondence between District Attorney Morrissey and the U.S. attorney’s office should be made public and that Morrissey should be disqualified. Federal authorities are investigating how the district attorney’s office has handled the case, although the nature of their investigation has not been made public.

Finally, blogger Aidan Kearney, who goes by Turtleboy, and who has taken Read’s side, is currently being held in custody on charges of witness intimidation and domestic assault and battery. Kearney and his supporters claim those charges were filed in retaliation for his crusade on Read’s behalf.

As I wrote up top, all of this is playing out against the background of a positive step taken by Congress. Despite the existence of some shield protections in 49 states, there is no shield law at the federal level. On Thursday, though, the House unanimously passed the PRESS Act, which the the RCFP describes as “a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.” The sole exceptions, according to a summary of the bill, would be in “limited circumstances such as to prevent terrorism or imminent violence.”

Given that the Republican House was able to act for all its dysfunction, there would appear to be reason for optimism that the Senate will approve the measure as well.

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NH newspaper publisher fined $620 for running unlabeled political ads

The saga of Deb Paul, the New Hampshire newspaper publisher who was threatened with six years in prison for running improperly labeled political ads, has finally come to an end, reports Damien Fisher of InDepthNH. On Wednesday, Derry District Court Judge Kerry Steckowych fined Paul $620, which adds up to $124 for each of the five counts the judge had convicted her of on Dec. 7. Paul had originally been charged with six counts, which carry a maximum sentence of a year in prison and a $2,000 fine for each violation.

Paul publishes the Londonderry Times and, at the time that the offenses took place, was also the publisher of the Nutfield News and the Tri-Town Times, which have since folded. Under New Hampshire law, it is a crime to publish political advertising without labeling it as such. The First Amendment allows for some regulation of paid political ads, but the law making such minor violations a crime rather than a civil offense strikes me as excessive, as does the zeal of the state attorney general, John Formella, who let the possibility of prison time hang over Paul’s head for nearly a year and a half.

It has to be said that Paul seems like a piece of work. Back in August 2022, shortly after the charges were filed, I published the results of some digging by friend of Media Nation Aaron Read, who discovered that Paul was not just the owner of the Londonderry Times — she was also 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?” In an interview with The Eagle-Tribune, Paul denied that was aimed specifically at her colleagues. Paul is apparently no longer a member of the council.

According to InDepthNH, the prosecution argued that draconian action was necessary because Paul was a serial offender who had failed to comply with the law despite earlier warnings. Paul, through her lawyer, said her violations were inadvertent. She also declined to speak with InDepthNH.

Judge Steckowych deserves credit for meting out a punishment that is more or less in line with a civil offense. And it’s time for the state legislature to intervene and reform the law so that other publishers are no longer in danger of being locked up for what amounts to a minor campaign finance violation.

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A Muzzle Award for the anonymous troll who reported ‘Gender Queer’ to the police

Photo (cc) 1928 by Blue Mountains Library, Local Studies

There’s an unidentified person somewhere out there who has richly earned a New England Muzzle Award, and I hope they’ll step forward to claim their trophy. Because this censorious busybody, hiding behind a cloak of anonymity, actually called the Great Barrington Police Department recently to complain that a middle school classroom had a copy of the notorious-though-it-shouldn’t-be book “Gender Queer,” by Maia Kobabe, on its shelves.

The oft-banned book, which includes graphic images, is used by a number of educators as a resource for young people who are questioning their sexuality. At the W.E.B. DuBois Middle School, though, a police officer actually showed up after school hours and, accompanied by the principal, paid a visit to the classroom so he could see for himself. According to Heather Bellow of The Berkshire Eagle, the officer actually turned on his body camera before beginning his search. “The officer then searched for the book and planned to remove the book as part of the investigation,” Bellow reports, but he couldn’t locate it and ended up leaving. (Bellow also wrote the initial story about the incident.)

Now, you may ask why the police department in this Western Massachusetts town isn’t being awarded a Muzzle. The reason is that it’s not clear they did anything wrong. The person who called the police department sent images that they claimed were from an obscene book. Obscenity, a tiny subset of indecent material, is actually illegal. It can be hard to define (the late Supreme Court Justice Potter Stewart once memorably said, “I know it when I see it”), but you can imagine that it’s pretty bad given that nearly all indecency is protected by the First Amendment. To be clear: “Gender Queer” doesn’t come within a mile of violating any obscenity laws. But Great Barrington Police Chief Paul Storti told Adam Reilly of GBH News that his officers were obliged to respond to what may have been a legitimate complaint. Reilly quoted Storti as saying:

The interaction with the teacher was cordial. The officer didn’t touch anything. They didn’t search. They basically asked if the book was still there, to give the context of what we were dealing with dealing with. The teacher said the book wasn’t there, and the officer left.

I’ll grant you that Storti’s comments are at odds with the Eagle’s report that the officer “searched for the book,” but I’ll have to leave that unresolved for now. The larger issue is that a member of the community saw fit to mobilize law enforcement because of the possible presence of a much-praised book.

The fallout has been significant. The ACLU is seeking the body-camera footage. More than 100 students and staff walked out of Monument Regional High School to protest the attempt at censorship, earning praise from Gov. Maura Healey, who said, “Book banning has no place in Massachusetts.” And the Eagle ran a letter to the editor today that said in part, “Let’s make the book recommended reading for all middle school parents and faculty, and then organize a public forum to discuss the book.”

Although the Great Barrington Police Department has avoided the ignominy of receiving a Muzzle Award, Chief Storti and Berkshire District Attorney Timothy Shugrue, whose office also got involved, need to engage in some discussion and training about what to do the next time something like this happens. Because we all know that it will.

Correction, May 17, 2024: This post originally said that the search took place in the school library. In fact, it was in a classroom.

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A NH publisher faces sentencing, while a small town in Mass. says no to drag

North Brookfield Town Hall. Photo (cc) 2009 by John Phelan.

A New Hampshire newspaper publisher has been found guilty of publishing political advertising that did not include legally required labeling. Debra Paul was convicted of five misdemeanor counts in a bench trial presided over by Derry District Court Judge Kerry Steckowych, according to Damien Fisher of the nonprofit news organization InDepthNH. Sentencing is scheduled to take place Dec. 20. The 64-year-old publisher faces a possible sentence of one year in prison and a $2,000 fine on each of the five counts.

I’ve been following this case for more than a year because of its absurdity. The state attorney general’s office says that Paul broke the law on several occasions by publishing ads for local candidates and warrant articles in two weekly newspapers that she owned, the Londonderry Times and the Nutfield News, the latter of which has stopped publishing. It seems to me that someone — maybe the state legislature, which could correct this travesty — deserves a New England Muzzle Award. Two reasons:

  • The first is that lawmakers in the Live Free or Die State have decided, for whatever reason, that minor violations of campaign laws should amount to crimes rather than civil offenses. I’d be very surprised if Paul does any time behind bars, but the threat is there, and she’s been living with it for more than a year, when the charges were initially filed.
  • The second is that even though the First Amendment allows for the regulation of political advertising, there was no intent to deceive. In my first post on this case, I reproduced a candidate ad that appeared in one of Paul’s papers. It’s properly labeled as a “Political Advertisement,” but if that was removed, would anyone think it’s anything other than an ad? Of course not. Enforcement ought to be reserved for deliberately deceptive political ads, such as those that could be confused with actual news articles.

We’ll see what Dec. 20 brings. I hope that Judge Steckowych hits Paul with, at worst, a token fine — and has something to say about governmental overreach into an arena where it can do the most damage: political speech.

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The select board in North Brookfield, Massachusetts, and two of its members have been sued by the ACLU of Massachusetts because they refused to approve a 2024 Pride celebration on the grounds that the event is scheduled to include a drag performance. The lawsuit was filed in conjunction with the Rural Justice Network, which is headquartered in North Brookfield and whose Facebook page describes the organization as providing “education that informs an equitable and peaceful society in Rural America.” Carol Rose, the ACLU’s state executive director, said in a press release:

This is discrimination based on the viewpoint our clients seek to express: that all members of the community deserve to live and participate fully, openly, freely, and joyously. Let’s be clear: The government has no right to censor LGBTQ+ people or their right to assemble and express themselves.

The two individual members who were sued, chair Jason Petraitis and vice chair John Tripp, both voted against the permit, and are thus receiving New England Muzzle Awards. There are only three members of the board, which means they comprise a majority. It also seems pretty rich that a three-member body would have both a chair and a vice chair. The third member, Elizabeth Brooke Canada, has a title, too — she’s the clerk.

According to the ACLU, Petraitis and Tripp are recidivists, having also voted against allowing the Rural Justice Network to include a drag performance during a 2023 event, which was held anyway after the ACLU and the town’s lawyer intervened.

Jeff A. Chamer of Worcester’s Telegram & Gazette has quite a report on the board meeting at which the latest permit application was rejected. The highlight is Petraitis telling a representative from the Rural Justice Network, “You can get the approvals from other people, but the same thing’s gonna happen this year that happened last year: I’m not voting for it. If you’re not gonna have that stuff hidden from kids, I’m not voting for it.”

And when Canada suggested to Petraitis that failure to approve the permit would violate the town’s parks and recreation policy, Petraitis responded: “I really could care less.”

Canada then offered a motion to approve the permit, which was rejected on a 2-1 vote.

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An outrage against the First Amendment in Alabama

As Washington Post media reporter Paul Farhi points out (free link), while it is illegal to leak grand jury information, it is not illegal for a news outlet to publish a story based on that leaked information. An outrageous breach of the First Amendment in Atmore, Alabama, where a reporter and the publisher of the weekly Atmore News face criminal charges for committing journalism.

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NH publisher in political-ad case finally goes on trial

A New Hampshire newspaper publisher who faces criminal charges for not properly labeling political advertising went on trial on Wednesday. Great lead by Damien Fisher in InDepthNH.org: “Debra Paul didn’t use the magic words, and now the community newspaper publisher is facing jail time.” If Judge Kerry Steckowych finds Paul guilty of the six criminal charges against her, he could fine her $12,000 and sentence her to six years in prison. Obviously that would be piling an outrage on top of an absurdity, but we shall see.

Previous coverage:

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In Marblehead and Waltham, teachers and officials seek to stifle public scrutiny

In Marblehead, a number of teachers and other school staff members recently showed up at a school committee meeting to complain about public records requests filed by a nonprofit news organization that covers the town. In Waltham, the city solicitor issued what amounted to a pre-election gag order, advising city officials who were running for re-election that if they participated in candidates forums they should not address pending municipal business. These two attempts to shut down discussion of important community issues have earned the perps our latest New England Muzzle Awards (see explanation here).

First, let’s take a look at what’s going on in Marblehead. According to Ryan Vermette of the Marblehead Weekly News, the co-presidents of the teachers union, the Marblehead Education Association, said at a school committee meeting that public records requests submitted by Marblehead Current reporter Leigh Blander were costing the town money and creating a stressful situation for their members. Vermette’s article begins:

The library at Marblehead High School was standing room only at the start of the School Committee’s meeting last Thursday night as dozens of district staff stood with committee members against what they alleged was an excessive amount of Freedom of Information (FOIA) requests from a local newspaper.

“Not only does this waste significant time and resources for the district, but it causes significant stress for our educators, who become the subject of these investigations, and their reputations come under attack,” Vermette quoted co-president Jonathan Heller as saying. “While the number of incidents is relatively small to date, the threat they represent is apparent.” The other co-president, Sally Shevory, was not quoted in the story.

Now. for some background, because this is a little complicated. The for-profit Marblehead Weekly News, published by The Daily Item of neighboring Lynn, is one of three independent news outlets covering the town. The Marblehead Current, where Blander works, is a nonprofit. The third, Marblehead Beacon, is a for-profit; oddly enough, Jenn Schaeffner, a founder, editor and reporter for the Beacon is also a member of the school committee. Beacon articles about the school system are appended with this: “She [Schaeffner] is recusing herself from Marblehead Beacon’s coverage of the School Committee and anything pertaining to Marblehead Public Schools.” As best as I could tell, the Beacon has made no mention of the public records issue.

Marblehead has been beset by several controversial issues involving the school system recently, including a heavily scrutinized statement by the superintendent about the war between Israel and Hamas; a bullying investigation involving a former high school soccer coach; and possible disciplinary issues involving a former superintendent. If you’d like, you can read all the details in a Current editorial responding to the public records matter. What’s relevant is that the Current is being called out by union leaders and school officials for trying to hold them to account through their journalism. As Blander said in a statement to the Weekly News: “In pursuit of our mission to foster democratic participation by informing our readers about important issues, including those that impact students and their families, the Current seeks to make responsible use of the public records laws.”

What’s more, there is no evidence that the Current has abused the public records law by filing an inordinate number of requests. According to the editorial, “Since our launch in June 2022, we have filed 15 public records requests, 14 of which have been directed to the School Department.” Eleven of those were related to the departure of the previous superintendent. To be fair, school officials determined that a recent request for records about complaints against teachers would have required poring over nearly 477,000 emails, and that the Current would be assessed $50,000. But as the editorial put it: “As should have been obvious, the Current was not seeking to commission such a voluminous and intrusive search. We agree that would not be the best use of school employees’ time (or our money). Moving forward, if we inadvertently submit overly broad records requests to record keepers, we hope our partners in public service would simply call us and ask, ‘What are you really looking for? Can we find a way to respond without overburdening our staff?'” The editorial concluded:

Our school officials have to realize, though, that if what they are asking is essentially “stop asking so many questions,” we view that prescription as a non-starter. While we will take better care to make our requests more targeted and less burdensome, we will continue to use the public records law to seek answers we believe the public deserves.

The public records law exists so that members of the public — and the press, acting as representatives of the public — can hold government accountable. This particular Muzzle Award goes not to any particular individual but, rather, to union officials and the school committee as a whole for promoting an atmosphere suggesting that they know best, and that the prying eyes of the press are not welcome.

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In Waltham, meanwhile, City Solicitor John Cervone has earned a Muzzle for issuing a ruling calling it “potentially problematic” if elected members of the city council who were participating in candidates forums addressed issues that were currently under consideration. This is an absurd restriction, since a challenger would be free to discuss such issues freely while the incumbent would be forced to sit there and say nothing except “upon the advice of counsel blah blah blah.” As a Boston Globe editorial put it:

The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.

Justin Silverman, a lawyer who’s the executive director of the New England First Amendment Association, was quoted as saying that Cervone’s opinion appeared to be based on a misunderstanding of the state’s open meeting law. “If there isn’t a quorum present at public events, then it’s not a violation under the open meeting law,” Silverman said. No doubt — and yet it’s more than theoretically possible that a quorum of council members could be present at a candidates forum if they were all running for re-election.

A mayoral candidate, City Councilor Jonathan Paz, said Cervone’s opinion created a “chilling effect,” adding, “We as candidates are supposed to be candid, we’re supposed to be transparent about our values and our positions on certain matters.” And wouldn’t you know it: Paz lost his challenge to incumbent Mayor Jeannette McCarthy by a wide margin. No doubt it’s a stretch to say that the gag order hurt Paz’s campaign — but surely it didn’t help.

The Globe editorial notes that a similar issue arose in Newton four years ago. It’s time to clarify the law so that muncipal lawyers in other communities don’t travel down a similar censorious path.

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Kansas chief who ordered newspaper raid is suspended

Gideon Cody, the police chief who ordered the raid on the offices of the Marion County Record in Kansas as well as two private homes, has at long last been suspended. The raid — which may have led to the death of the paper’s 98-year-old retired publisher, Joan Meyer — was supposedly related to the Record’s having received confidential records about a local restaurateur. But it came at a time when the paper was investigating allegations of sexually charged and abusive behavior by Cody in his previous job. The Record’s Phyllis Zorn has the details.

Earlier coverage.

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