What kind of fallout should there be for public officials who are Donald Trump supporters and who took part in the “Stop the Steal” rally-turned-insurrection in Washington on Jan. 6? Three stories in The Boston Globe explore that issue.
The most ambiguous, and therefore the most interesting, is the case of David Ellis Jr., the police chief in Troy, New Hampshire, a longtime Trump supporter who’d previously gotten into trouble for displaying MAGA paraphernalia in his office (see photo above). According to the Globe and to New Hampshire Public Radio, Ellis took part in the protest, but was not among the rioters who invaded the Capitol. He’s also spoken out against the violence.
“I witnessed the people harassing the riot police that were getting in their gear on Constitution Ave, as I’m walking back to get to the train station at Union Station,” Ellis told NHPR. “It was ridiculous, people were giving police such a hard time.”
Nevertheless, there have been calls for town officials to fire Ellis. There have been threats, leading to a lockdown at town hall. But, so far, they’re standing by Ellis. NHPR quoted Richard Thackston, chair of the town’s selectmen, as saying at a public meeting:
I personally find the events that happened yesterday appalling; they brought tears to my eyes, the thought that three people, four people lost their lives in an utterly unnecessary and pointless occurrence is tragic. But I believe that any individual, any public servant has the right to participate in political events without fear of loss of employment or having it have any effect.
I think that’s the right call for anyone who took part in the protests but did not engage in any violent behavior and made no attempt to enter the Capitol. It sounds like Ellis holds dangerously false views put forth by Trump about the integrity of the election. But unless evidence emerges that his activities were not limited to peaceful protest, that should be the end of the matter.
Not so with an unnamed Boston Police officer who, according to the Globe, may have attended the rally and gone inside the Capitol, and who issued threats against Vice President Mike Pence on social media. He should be gone for the threats alone, and if he was among the invading force, he should be prosecuted.
The same goes for Natick town meeting member Suzanne Ianni, who was photographed inside the Capitol, and who told Agence France-Presse (not Yahoo News, as the Globe erroneously reports), “We will fight tooth and nail. This isn’t over just if Biden gets inaugurated, if that happens. We’ll never stop fighting. And Trump will be our president for the next four years, no matter who they inaugurate.”
Town officials have said they can’t get rid of Ianni. But every single one of the rioters who entered the Capitol should be prosecuted. And there she is in the photo accompanying the Globe story, fist upraised.
How can we limit the damage that social media — and especially Facebook — are doing to democracy? We all know what the problem is. The platforms make money by keeping you logged on and engaged. And they keep you engaged by feeding you content that their algorithms have determined makes you angry and upset. How do we break that chain?
Josh Bernoff, writing in The Boston Globe, offers an idea similar to one I suggested a few months ago: leverage Section 230 of the Telecommunications Act of 1996, which holds digital publishers harmless for any content posted by third-party users. Under Section 230, publishers can’t be sued if a commenter libels someone, which amounts to a huge benefit not available in other contexts. For instance, a newspaper publisher is liable for every piece of content that it runs, from news articles to ads and letters to the editor — but not for comments posted on the newspaper’s website.
Bernoff suggests what strikes me as a rather convoluted system that would require Facebook (that is, if Mark Zuckerberg wants to continue benefiting from Section 230) to run ads calling attention to ideologically diverse content. Using the same algorithms that got us into trouble in the first place, Facebook would serve up conservative content to liberal users and liberal content to conservative users.
There are, I think, some problems with Bernoff’s proposal, starting with this: He writes that Facebook and the other platforms “would be required to show free ads for mainstream liberal news sources to conservatives, and ads for mainstream conservative news sites to liberals.”
But that elides dealing the reality of what has happened to political discourse over the past several decades, accelerated by the Trump era. Liberals and Democrats haven’t changed all that much. Conservatives and Republicans, on the other hand, have become deeply radical, supporting the overturning of a landslide presidential election and espousing dangerous conspiracy theories about COVID-19. Given that, what is a “mainstream conservative news site”?
Bernoff goes so far as to suggest that MSNBC and Fox News are liberal and conservative equivalents. In their prime-time programming, though, the liberal MSNBC — despite its annoyingly doctrinaire, hectoring tone — remains tethered to reality, whereas Fox’s right-wing prime-time hosts are moving ever closer to QAnon territory. The latest is Tucker Carlson’s anti-vax outburst. Who knew that he would think killing his viewers was a good business strategy?
Moving away from the fish-in-a-barrel examples of MSNBC and Fox, what about The New York Times and The Wall Street Journal? Well, the Times’ editorial pages are liberal and the Journal’s are conservative. But if we’re talking about news coverage, they’re really not all that different. So that doesn’t work, either.
I’m not sure that my alternative, which I wrote about for GBH News back in June, is workable, but it does have the advantage of being simple: eliminate Section 230 protections for any platform that uses algorithms to boost engagement. Facebook would have to comply; if it didn’t, it would be sued into oblivion in a matter of weeks or months. As I wrote at the time:
But wouldn’t this amount to heavy-handed government regulation? Not at all. In fact, loosening Section 230 protections would push us in the opposite direction, toward deregulation. After all, holding publishers responsible for libel, invasions of privacy, threats of violence and the like is the default in our legal system. Section 230 was a regulatory gift, and it turns out that we were too generous.
Unlike Bernoff’s proposal, mine wouldn’t attempt to regulate speech by identifying the news sites that are worthy of putting in front of users so that they’ll be exposed to views they disagree with. I would let it rip as long as artificial intelligence isn’t being used to boost the most harmful content.
Needless to say, Zuckerberg and his fellow Big Tech executives can be expected to fight like crazed weasels in order to keep using algorithms, which are incredibly valuable to their bottom line. Just this week The New York Times reported that Facebook temporarily tweaked its algorithms to emphasize quality news in the runup to the election and its aftermath — but it has now quietly reverted to boosting divisive slime, because that’s what keeps the ad money rolling in.
Donald Trump has been crusading against 230 during the final days of his presidency, even though he doesn’t seem to understand that he would be permanently banned from Twitter and every other platform — even Parler — if they had to worry about being held legally responsible for what he posts.
Still, that’s no reason not to do something about Section 230, which was approved in the earliest days of the commercial web and has warped digital discourse in ways we couldn’t have imagined back then. Hate speech and disinformation driven by algorithms have become the bane of our time. Why not modify 230 in order to do something about it?
Comments are open. Please include your full name, first and last, and speak with a civil tongue.
The Mystic Valley Regional Charter School is back in the news for discriminatory behavior — this time for insensitive comments by a former trustee and flat-out racist remarks and disciplinary practices. The Boston Globe reports.
Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.
According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.
This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.
By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).
At a moment of national crisis over racism and police brutality, it is depressingly apt that our lead New England Muzzle Award this year concerns an African American teacher in Milton, Massachusetts, who was briefly placed on leave and investigated for telling her sixth-grade poetry students that some police officers are racist.
School officials in Milton quickly backtracked, and the teacher, Zakia Jarrett, received a considerable amount of public support. Nevertheless, it’s sad and telling that the school administration’s first impulse was to punish the messenger rather than focus on the uncomfortable truth of her message.
Other Muzzle Award winners this year include a judge who refused a prosecutor’s request that he drop minor charges against nonviolent protesters (for good measure, he also briefly jailed a defense lawyer for reading the law to him); the police department in Portland, Maine, whose officers made an intimidating visit to a critic’s home under the guise of what appear to be trumped-up vandalism charges; and a town official in Exeter, Rhode Island, who shepherded through an ordinance requiring that people attending public meetings act with “decorum.”
Needless to say, the 2020 Muzzle Awards come at a time of unprecedented crisis, as the country struggles with the COVID-19 pandemic, economic collapse and a long-overdue coming to terms with the legacy of racism.
New England was spared the worst of those excesses. Still, especially in the early days of the demonstrations, heavy-handed police tactics in Boston and elsewhere sometimes overshadowed the message that the protesters were trying to convey. Suffolk County District Attorney Rachael Rollins told The Boston Globe last week that she is investigating police conduct at those protests.
The New England Muzzles are published around the Fourth of July every year to call attention to outrages against freedom of speech and of the press. They were launched in 1998 at the late, great Boston Phoenix, which ceased publication in 2013. This is the eighth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
The envelopes, please.
Milton (Mass.) Public Schools
A Black teacher is targeted for speaking the uncomfortable truth.
Perhaps a Muzzle Award should go to the anonymous parent or student who recorded Zakia Jarrett last month as she was leading a remote sixth-grade poetry lesson and said that Black people were “being killed by racist white people … which many of the cops are, as well.” Whoever passed along that clip to Milton school officials sent an ominous warning in this new era of education by Zoom and Google: Be careful what you say, because you’re being watched.
Instead, though, the Muzzle goes to the Milton Public Schools. Their sole response should have been to remind everyone that recording teachers and making the clips public was a violation of school policy. Instead, according to The Boston Globe, Jarrett’s principal at the Pierce Middle School, William Fish, placed Jarrett on paid administrative leave while school officials investigated, sending a chilling message to the entire town.
The action affecting Jarrett was reversed later that day. But a considerable amount of damage had already been done. About 400 parents reportedly signed a letter in support of Jarrett, who is Black, and called on the school system to do a better job of teaching students about race and racism.
School officials quickly backtracked from their initial tough stance.
“At no point was the teacher suspended nor was any disciplinary action taken. The leave was rescinded after a few hours,” according to a statement posted on the school system’s website. The statement added that Schools Superintendent Mary Gormley “met with and apologized to the teacher and followed up with a written apology.”
But the Milton Educators Association, as the local teachers’ union is known, had a decidedly different perspective. In a statement published in the Milton Times, the union said that “nearly an entire week went by before the district responded to this situation in a way that conveyed how its actions let down all of the students and educators. The district’s message still fell short of what the MEA believed would have been an acceptable apology that acknowledged the full impact of this incident.”
What’s sad is that school officials fell back upon an unthinking bureaucratic response at the first sign of trouble. They should have been able to see how this would play out as soon as they received that 13-second clip. Not only could they have avoided a lot of trouble, but they missed a chance to do the right thing.
On June 19, Juneteenth, Milton educators and activists held a rally and march for racial justice. It was a chance for everyone to reflect and to take steps to ensure that nothing like it would happen again.
Despite that support, Jarrett told the Globe she hadn’t decided whether to stay in Milton.
“The word ‘racism’ triggers a lot of negative feelings,” she was quoted as saying. “The idea that people may hold racist beliefs makes them feel bad about themselves. But all people have biases and prejudices. And until we talk about them, we can’t root them out.”
Mass. Gov. Charlie Baker
He seeks to end nearly 380 years of access to vital records.
Since 1641, Massachusetts has made death certificates, marriage notices and birth records freely available to anyone who requests them. That could change, though, under an obscure proposal included as an outside section of the budget earlier this year, according to The Boston Globe. The proposal would hide such records from public view for what would amount to a lifetime.
If approved, the measure would be a step backwards in a state already notorious for limited access to public records. The Muzzle goes to Gov. Charlie Baker, who may be under the impression that he’s enhancing privacy protections, but who in reality would be cutting off a vital source of information for journalists and researchers.
Access to such records advances the public interest. For example, WGBH News reporter Jenifer McKim tweeted, “As MA governor works to make birth, death records secret, thinking of the stories I’ve written and produced with the help of these key, currently public, documents,” including suicides at colleges and universities.
As MA governor works to make birth, death records secret, thinking of the stories I've written and produced with the help of these key, currently public, documents: Stories looking at suicide deaths at local colleges and universities: https://t.co/GOzUJ7tNkC.
The genealogical community was angered as well. In an interview with the Chelsea Record, Ryan Woods, executive vice president of the New England and Genealogical Society, said, “Unequivocally it was a surprise to us. There had not been any public discussion about this until it appeared in the budget.”
The Massachusetts Genealogical Council said the measure would make health researchers’ jobs harder and could make it more difficult for women who need to document breast cancer within their families so that they may qualify for genetic testing. The council added: “This is a time when genealogists from throughout the world should step up and be heard.”
By including the proposal in his budget rather than filing it as a separate piece of legislation, Baker has made it more difficult to defeat, as legislators won’t be able to vote against it without also opposing spending measures that they might support.
The governor and the legislative leadership should delete this ill-considered proposal before it is ever put to a vote.
Judge Richard Sinnott
The son of Boston’s last official city censor keeps the tradition alive.
For courtroom heavy-handedness above and beyond the norm, it’s hard to beat Muzzle winner Richard Sinnott, a judge in the Boston Municipal Court.
Last September, The Boston Globe reported that Suffolk County District Attorney Rachael Rollins was seeking to drop charges against a group of nonviolent counter-protesters who’d been arrested on minor charges at a so-called Straight Pride demonstration. Sinnott refused.
Next, he ordered one of the defense lawyers, Susan Church, removed and locked up because she had the temerity to read from case law in order to argue that Sinnott had no right to reject Rollins’ recommendation. She was released about two hours later. “All I was trying to do is to read the law to the court, and I was summarily arrested, handcuffed, brought down to the holding cell, held there for hours,” Church told WGBH News.
The lenient treatment that Rollins sought was not indiscriminate, as she asked for more-serious charges to move forward against another group of protesters accused of violence.
“Make no mistake: some people were appropriately arraigned and will be held accountable for actions that put the safety of the public and law enforcement at risk,” Rollins said in a statement reported by Universal Hub. “For those people now tangled in the criminal justice system for exercising their right to free speech — many of whom had no prior criminal record — I will use the legal process to remedy the judge’s overstepping of his role.”
The standoff was resolved quickly. Several days later, Supreme Judicial Court Justice Frank Gaziano ruled that Judge Sinnott had no authority to stop Rollins from dropping the charges, according to MassLive.
Sinnott comes by his Muzzle-worthy ways naturally. His father, also named Richard Sinnott, was at one time the city censor, in charge of banning risqué entertainment such as strip shows and overly salacious Broadway plays. The New York Times called him “the last municipal official empowered to ban wickedness in Boston.”
Good thing that the younger Sinnott’s bid to keep the “Banned in Boston” flame burning ended in failure.
U.S. Customs and Border Protection
From their perch in northern Maine, they spy on Canadian mail.
What could be more sacrosanct than your mail? With the exception of prison inmates and targets of criminal investigations, people have a right to receive packages and read correspondence free from the prying eyes of the government.
Unless, that is, you live on Campobello Island, New Brunswick. Except for the summer months, when a ferry is in service, mail is delivered to the Canadian outpost over a bridge from Lubec, Maine — giving our Muzzle winner, U.S. Customs and Border Protection, entrée to tear it open and inspect it. Residents know their mail has been pawed over when it arrives resealed with green tape.
To be clear, we’re talking about internal Canadian mail, originating in Canada and sent to a Canadian village. The only reason it’s delivered through the United States is because of an accident of geography.
This outrageous situation drew press coverage late last year and early this year from the Canadian Broadcasting Corp., the BBC, The Washington Post, The Boston Globe and other media outlets. As Dale Calder, a retired Canadian government employee, told the Globe, “It’s an invasion of our privacy. There’s personal correspondence in there, people’s health records, and financial records. What are they doing with it once they open it?”
In a statement to CBC Radio, U.S. Customs officials said they “possess broad search authority to ensure the safety and admissibility of all goods entering the United States.”
Although U.S. officials wouldn’t confirm it, residents believe the reason for this snooping is that old demon weed. Marijuana is legal in Canada and Maine, but it remains illegal to transport it over the U.S. border.
“I don’t like American bullying. This kind of stuff bothers me,” an island resident named Steve Hatch, who holds both Canadian and American citizenship, told the CBC. “You should have an expectation of privacy with the mail, and we don’t here on the island.”
An out-of-state anti-LGBTQ activist bamboozles Rhode Island legislators.
To be fair, the bill that five Rhode Island state legislators introduced in March was aimed at addressing an unethical journalistic practice: reporting that a public official is under investigation but then failing to follow up. Sometimes accusations are set aside and the target is cleared of wrongdoing. The media should report that, as well.
Mandating a follow-up by law, however, is a clear abridgement of the First Amendment. That is why we are presenting a Muzzle Award to Chris Sevier, an anti-LGBTQ activist from Tennessee who achieved minor celebrity status some years ago for attempting to marry his laptop computer, according to the nonprofit news organization Mississippi Today.
Sevier is the leader of a nebulous organization called Stop Guilt by Accusation, which has pushed legislation in a number of states that would require news organizations to report the outcome of investigations into public officials accused of illegal or unethical conduct. “The freedom of the press is not absolute,” Sevier told Mississippi Today.
The Rhode Island legislators withdrew the bill and conceded it went too far, according to WPRI. James Bessette, president of the Rhode Island Press Association and an editor at Providence Business News, told the station, “The fact that this bill — which would be damaging beyond any comprehension — was even introduced is both laughable and frightening.”
A coda: Last January, a similar bill was introduced in the New Hampshire legislature. According to the New England First Amendment Coalition, the legislation would have imposed liability on any news outlet that reported on criminal charges and then later failed to report that the person had been acquitted or that the charges had been dismissed.
The bill quickly died in committee.
Sevier’s group identifies New Hampshire as one of the states where it is pushing his legislation. But state Rep. Jack Flanagan, R-Brookline, the sponsor of the New Hampshire bill, said in an interview with WGBH News that he had never heard of Sevier, and that the idea was his alone.
“I received a number of concerns from people who had been arrested, became public and were found not guilty, dismissed or dropped,” Flanagan said by email, adding: “My issue was that we weren’t telling what to write, but to write the whole story.”
Flanagan wins a Dishonorable Mention for his attempt to transform a reasonable observation about media ethics into an unconstitutional law.
The Berkshire district attorney’s public records refusal prompts a resignation.
Public records violations are so common that they often don’t get the attention they deserve. Yet the principle that government should be transparent is an important one. If we don’t know what our representatives are up to, then the idea that we live in a self-governing democracy is meaningless. Unfortunately, the Massachusetts public records law is so weak that officials violate it with impunity — even though the law was strengthened slightly several years ago.
Some incidents, though, are so egregious that they warrant special mention — which is how Berkshire County District Attorney Andrea Harrington earned herself a Muzzle.
Last December, The Berkshire Eagle filed a public records request about a student at Bard College at Simon’s Rock who said she’d been racially attacked. Following an investigation, her claim was found to have been a hoax. Harrington’s office declined to provide the records.
What happened next was truly startling. Harrington’s public records officer, Jeanne Kempthorne, resigned and blew the whistle on the DA, telling the Eagle, “It was the straw that broke the camel’s back. My concern is that what she [Harrington] did was not in the public’s interest; it was in her interest. This isn’t a private company, and it’s not her campaign. There are bigger considerations — are we actually going to fulfill our public duties?” For good measure, Kempthrone gave the Eagle redacted copies of the records it had sought.
Harrington’s office denied that anything untoward had taken place. But the law requires law enforcement agencies to release records once an investigation has concluded, as was the case with the Bard incident.
“When officials abuse the investigatory exemption of the public records law, they prevent us from learning if justice is being served in our communities,” said Justin Silverman, executive director of the New England First Amendment Coalition, in an interview with the Eagle.
Finally, we are awarding a Dishonorable Mention to the Massachusetts State Police, also a 2019 Muzzle winner, which was sued by The Boston Globe in February of this year over the agency’s failure to produce documents related to the paper’s reporting on an investigation into overtime fraud and related matters.
A high school principal in Maine shuts down discussion about sexual assault.
Aela Mansmann wanted to call attention to sexual harassment and assault at Cape Elizabeth High School in Maine, where she was a sophomore. So last September, she posted a note in the bathroom that read, “There’s a rapist in our school and you know who it is.” Several other girls began posting similar notes.
But when a male student complained that he was feeling targeted (an interesting reaction, given that no one was named in the notes), the school decided to act — not against sexual assault, but against whoever had posted the notes. An investigation of several weeks ensued. And the principal, Jeffrey Shedd, has earned a Muzzle Award for suspending Mansmann and two other girls for three days, writing to parents that the students had made a “bad choice” that “hurt” others, according to News Center Maine.
“I honestly feel very ashamed that my school took this action,” Mansmann said in an interview with BuzzFeed News, adding: “It was really addressing the general culture of our school, and keeping in mind several specific cases. But there are so many it’s hard to pinpoint just one and advocate for just one of them.”
After Mansmann’s parents and the ACLU of Maine filed a lawsuit in U.S. District Court to overturn her suspension, Judge Lance Walker issued a temporary restraining order, ruling that they were likely to prevail on the merits. “If school administrators,” Walker wrote acidly, “receive carte blanche to tamp down and vet non-frivolous outcries on topics of social justice, expressed in areas generally associated with free student communication, where would that leave us?”
School officials should have taken the opportunity to stand down. Instead, they filed an appeal, with Cape Elizabeth School Board Chairwoman Susana Measelle Hubbs saying that administrators needed to be able to respond to statements “that are likely to spread fear and alarm, or to harm others,” according to a report by WGME and The Associated Press.
Mansmann’s suspension was put on hold pending final resolution of the case, the Portland Press Herald reported. The other two girls have not spoken publicly. It’s time for school officials to end this fiasco and apologize for trampling on the students’ free-speech rights.
A local official in Rhode Island tells the public: Be nice — or else.
Anyone who has spent much time covering local government meetings knows that the internet isn’t the only place where you can find trolls. Cranks of various persuasions often show up so that they can yell, raise irrelevant issues and generally make pests of themselves. Sometimes they even have legitimate concerns.
Such gadflies have been dealt with since time immemorial by asking them to be quiet or, if that doesn’t work, asking them to leave. If they resist, there’s usually a police officer on hand to help them find the door. (These days, of course, they can just be muted on Zoom.)
Which is why Calvin Ellis,president of the town council in Exeter, Rhode Island, has earned a Muzzle. Last September, the council approved his unnecessary, speech-squelching ordinance requiring “decorum” by people who attend public meetings.
“We don’t anticipate enforcement,” said Ellis, according to a report by WJAR. “Only we want proper decorum, proper conduct to prevail.” Well, if you don’t “anticipate enforcement,” why do it in the first place?
Exeter has had its issues. Reportedly, some members of the public have walked out in the face of yelling, and on one occasion the Rhode Island State Police had to be called. But it’s hard to see how a rule mandating decorum would change that.
Here’s the most problematic part of the Exeter ordinance, as reported by the Johnston Sun Rise: “Any person making personal, impertinent, or slanderous remarks or who shall become boisterous while addressing the Town Assembly, Council, Board, or Commission, or any member thereof, shall be forthwith, by the presiding officer, barred from further audience before the Town Assembly, Council, Board, or Commission at that meeting, unless permission to continue is granted by a majority vote of the Town Assembly, Council, Board, or Commission.”
As Steven Brown, executive director of the ACLU of Rhode Island, put it in a statement: “When does a pointed criticism of a Council member for their stand on an issue become ‘personal’? … When will impassioned comments of a speaker — whether out of enthusiasm or anger — become improperly ‘boisterous’ and subject him or her to removal from the meeting?”
A short time after the measure was approved, the Narragansett Town Council rejected a similar measure. Exeter needs to reconsider. It should be possible to exercise some control over a public meeting without an ordinance that tramples on the First Amendment.
His pre-pandemic proposal to ban face masks at protests went nowhere.
If we had a category for Most Ironic Muzzle Award, it would surely go to Boston City Councilor Timothy McCarthy. Last September, according to WGBH News, McCarthy persuaded his colleagues to draft an ordinance banning face masks and other identity-shielding coverings at public demonstrations.
What prompted him were the face shields used by some counter-protesters at the anti-LGBTQ “Straight Pride” rally — the same counter-protesters who drew Judge Richard Sinnott’s attention (above). To be fair, McCarthy was targeting those engaging in violence, not peaceful protesters.
“When did people wake up in the morning and say, ‘Hey, let’s go to a peaceful protest, but don’t forget your razors, and your keys for handcuffs, and your face masks in case you get urine and bleach that you’re throwing at the cops, you don’t want to get that in your eyes,’” McCarthy said.
The irony, of course, is that because of the COVID-19 pandemic, we are now all required to wear face masks outdoors if we’re unable to practice social-distancing. Compliance with orders to wear face masks has been less than universal during the Black Lives Matter protests that have broken out over police brutality and racism, raising the specter of another coronavirus surge. Needless to say, if McCarthy’s misguided proposal had been approved, the Council would now be racing to repeal it.
Last September, McCarthy drew some guarded support from fellow councilors for his proposed face-mask ban, who noted that similar bans have been used to good effect against the Ku Klux Klan. Mayor Marty Walsh, in an interview with Jon Keller of WBZ-TV, said such a ban might make sense as long as there was an exemption for religious reasons.
At a subsequent Council meeting, though, mask-wearing opponents spoke out against the “absurdity” of the measure, according to a Boston Globe account. “Do you feel threatened right now?” asked Belmont resident Alex Marthews, who wore a mask to the hearing.
Anonymous speech is protected under the First Amendment. And it’s hard to see how an anti-mask ordinance could be enforced against those engaging in violence while leaving peaceful protesters alone.
Then again, wearing face masks in public is going to be with us for a long time. McCarthy’s idea, wrong-headed though it may have been, now seems like it’s from a distant, better world.
Portland (Maine) Police
Officers intimidate an outspoken critic by showing up at his house.
Journalist Christian MilNeil is the editor of the transportation website StreetsblogMASS, a former data reporter for the Portland Press Herald and a board member of the Portland Housing Authority. In other words, he’s not the sort of guy you would expect to spray two police substations with graffiti, as Portland Police officers claim and as he staunchly denies.
MilNeil believes the real reason that two officers showed up at his house one day last month was because of something rather different: his tweets that criticized the police. Based on the evidence, it appears that MilNeil is correct — and thus we are awarding a Muzzle to the Portland Police Department.
On June 9, as the officers approached, MilNeil took their photo through a window and tweeted: “IDK if this is related to my recent tweets but #portlandme police are at my home now and threatening arrest, they won’t say why.”
A short time later he added, “They’re making it pretty clear they’re upset with my recent tweets. One cop told my wife ‘I know about your preconceived notions of police — I know them for a fact.’” (MilNeil later said the officers did not specifically mention the tweets, but he inferred they had seen them from what they told his wife.)
It would appear that the officers were on a mission to intimidate an outspoken critic amid protests against police brutality. Among other things, MilNeil had tweeted about a police officer who’d killed people in 2017 and 2008 — the earlier incident because, according to MilNeil, the officer had “escalated a traffic stop.” He’s also tweeted in favor of defunding the police.
According to the Portland Press Herald, city spokeswoman Jessica Grondin said the graffiti had been written on two community policing substations, one of which was housed in a Portland Housing authority building. “It’s not because of the tweets,” she said in a text.
At deadline, it appeared that attempts were underway to get to the bottom of the incident. The Press Herald reported that City Councilor Kimberly Cook was seeking body-camera video of the encounter as part of the city’s investigation into how the police had responded to Black Lives Matter protests. The Press Herald filed a Freedom of Information Act request for the video, too, but was turned down, with the police citing investigatory exemptions.
Let’s hope some answers are forthcoming. It’s hard to imagine anything more chilling to free speech than having two police officers showing up on a critic’s doorstep and threatening prosecution on the basis of dubious charges.
With freedom of speech under unprecedented assault, it is heartening that young people get what’s at stake. Two of our 2019 New England Muzzle Awards single out high school principals who tried to silence their students — and wound up being taken to school about the true meaning of the First Amendment.
In Burlington, Vermont, students were forced to remove from their school newspaper’s website an unflattering story about one of their guidance counselors. They fought back, won, and received an award from the New England First Amendment Coalition, which recognized their efforts on behalf of a free press.
In Epping, New Hampshire, a freshman decided to take part in her school’s “America Day” celebration by wearing a red, white, and blue T-shirt that said “Trump: Make America Great Again.” Her principal ordered her to cover it up, which led to a public outcry, an apology, and an acknowledgment that she had a right to express herself as she chose.
The Muzzles are published around the Fourth of July every year to call attention to outrages against freedom of speech and of the press. This year’s round-up covers a wide range of offenders — from the police chief in Bridgeport, Connecticut, whose officers arrested a reporter covering a Black Lives Matter demonstration, to Massachusetts Gov. Charlie Baker, whose administration slapped a gag order on (get this) the state ornithologist. Other recipients include former Maine Gov. Paul LePage, the Massachusetts State Police, and the Rhode Island Division of Taxation, for playing literary critic in its enforcement of a tax exemption.
Our awards come at a time of great peril for the First Amendment. At the behest of President Trump, the U.S. government has charged WikiLeaks founder Julian Assange under the World War I-era Espionage Act for publishing secret documents stolen by former Army private Chelsea Manning. Assange may be an unsavory character, and he certainly was not a traditional journalist even in the years before WikiLeaks intervened in the 2016 election on behalf of Russian interests. But, as Margaret Sullivan argues in The Washington Post, it is virtually impossible to draw a constitutional distinction between what he did in the Manning case and what The New York Times and The Washington Post do when they work with sources such as Daniel Ellsberg and Edward Snowden. Going after Assange could set a dangerous precedent.
Moreover, just a few months ago, U.S. Supreme Court Justice Clarence Thomas wrote that his fellow justices should revisit Times v. Sullivan, a landmark 1964 libel case that protects news organizations from lawsuits by public officials (and, later, public figures) who would would like nothing better than to sue them into oblivion because of inadvertent errors. Times v. Sullivan freed the press to pursue stories like the Pentagon Papers and Watergate, and it remains an essential safeguard for investigative journalism.
The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the seventh year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
The envelopes, please.
Armando Perez Bridgeport police chief’s officers detain reporter for doing her job
When protesters took to the streets of Bridgeport, Connecticut, one evening in early May, their goal was to call attention to the death of Jayson Negron, an unarmed 15-year-old who had been fatally shot by a police officer in a Walgreens parking lot two years earlier.
Among those on hand for the protest was Tara O’Neill, a reporter with Hearst Connecticut Media. She had come to cover the demonstration. Instead, she found herself recording a video of her own arrest and posting it on Twitter. Even though she was reportedly wearing a press badge, she was handcuffed and detained for about a half-hour before being released. She was not charged; apparently the police realized at some point that journalism is not a crime.
“This is a public sidewalk and I’m the press,” O’Neill later recalled telling the officer who arrested her. “He said, ‘OK,’ and cuffed me.”
The Muzzle for this malicious act goes to Police Chief Armando Perez. The chief leads a department whose officers think nothing of removing a reporter from the scene of a demonstration so they can crack down on protesters free from the eyes of the press.
“Tara O’Neill is a dedicated reporter who is well-known to Bridgeport police and police leadership,” Matt DeRienzo, vice president of news and digital content for Hearst Connecticut Media, was quoted as saying. “There’s no chance this was a case of mistaken identity. They arrested a reporter while she was doing her job.”
O’Neill’s arrest drew condemnation from free-press advocates. “The fact that someone can be arrested in Bridgeport for the lawful exercise of a First Amendment right is chilling,” said Bruno Matarazzo, president of the Connecticut chapter of the Society of Professional Journalists.
In a letter to Chief Perez and Mayor Joseph Ganim, Justin Silverman, executive director of the New England First Amendment Coalition, added, “While responsible law enforcement is crucial to the well-being of our communities, so is journalism. There is simply no excuse for a journalist to be arrested for doing her job.”
Gov. Charlie Baker The state ornithologist is muzzled, shining new light on an old, censorious policy
One Saturday evening in mid-May, The Boston Globe published a story by its environmental reporter, David Abel, about the fate of barn swallows. Abel reported on a mini-controversy — federal officials wanted to demolish a rickety barn at the Silvio O. Conte National Fish and Wildlife Refuge that was home to the state’s largest colony of the birds.
Abel’s article included this tidbit: “Baker administration officials declined to allow the state ornithologist to comment, following a pattern of refusing to allow many state scientists to speak to the Globe. State officials acknowledged, however, that the swallows are experiencing ‘a long-term decline.’”
Seriously? Gov. Charlie Baker and his administration had muzzled the state ornithologist? It seemed absurd — so much so that Abel wrote a follow-up on Baker’s policy of not letting state scientists speak to reporters on the record. Invariably, he said, requests to interview scientists are answered with talking points from press spokespersons.
“The response I nearly always receive from the administration — as do many of my colleagues — is a self-serving statement with background bullet points,” Abel wrote. “Rarely do the answers address my questions.” Or as Abel was quoted as telling his fellow Globe staffer Felice Freyer in a post she wrote for the blog Covering Health: “This was a story about f***ing birds.”
To be fair to Baker, the policy is not new with his administration, and it extends beyond state-employed scientists — and far beyond Massachusetts. Elected officials like to maintain tight control of information. From their perspective, it’s better to force reporters to deal with media relations staff experienced at the art of not really saying anything than to connect them with unpredictable experts.
“The Public Information Officer is a frequently obstructive mechanism thinly veiled by a helpful sounding title,” wrote Cinnamon Janzer recently in the Columbia Journalism Review. “PIO-approved comments shape the narratives of their news coverage across the country on matters that range from the mundane to the extremely consequential.”
How bad is it? Janzer cited a 2015 study that showed more than 74 percent of science journalists “were routinely required to get approval from PIOs to interview employees some, most, or all of the time.”
As Abel reported, in Massachusetts that approval is rarely granted.
The absurdity exposed by Abel may not have originated with Baker. But it’s vital that reliable information about important issues be communicated to the public rather than having it filtered and fuzzed-up through the state’s various press offices. Until Baker fixes it, he owns it.
Exeter Police Department Shades of John Peter Zenger: An internet troll is charged with criminal libel
By all accounts, Robert Frese is one of those cranks who are the bane of online discussion boards, spewing venom indiscriminately at those he thinks have done him wrong. He reportedly referred to a life coach as a molester and a drug dealer. More recently, he called an Exeter police officer “corrupt” and a perjurer, and claimed the police chief was a coward who had “covered up for a dirty cop.”
What makes Frese unusual is that he has been charged twice under a New Hampshire law that defines libel under some circumstances as a misdemeanor criminal offense. For this gross overreaction to harsh criticism, the Exeter Police Department in New Hampshire has earned a Muzzle.
If you have given any thought to libel, you probably assumed that the days of charging someone with a crime for publishing defamatory statements about government officials went out nearly 300 years ago with the acquittal of John Peter Zenger. In fact, though, about half the states still have criminal libel laws on their books. And no less a First Amendment advocate than Eugene Volokh believes the New Hampshire statute is constitutional.
Nevertheless, the ACLU of New Hampshire is mounting a challenge in federal court, arguing that such laws “violate the First Amendment, give the public far too little guidance on what may constitute a crime, and give law enforcement far too much discretion in deciding whom to prosecute.”
The state attorney general, Gordon MacDonald, dismissed the case, arguing that Frese actually believes what he wrote, and that the law pertains only to statements that are made with the knowledge that they are false. But the ACLU counters that Frese should be allowed to proceed with his legal challenge on the grounds that he could face the same charge again. “Mr. Frese reasonably fears that his continued criticism of law enforcement and government officials, including officials in the Exeter Police Department, will result in future prosecutions,” according to the ACLU’s lawsuit.
The Frese matter is odd enough that it has been the subject of stories in both The New York Times and The Atlantic. And not just odd. The New Hampshire law, and similar laws elsewhere, amount to seditious libel, making it a crime to criticize the government. The courts should overturn this once and for all, both here and across the country.
Holyoke, Scituate and Wellesley Attempts to censor political signs run head-long into the First Amendment
What is it about municipalities and political signs? The courts have ruled over and over that messages with political content deserve the highest degree of First Amendment protection. Yet that hasn’t stopped local officials from trying to regulate or ban them. This year, our sign-related Muzzles go to the city of Holyoke and the towns of Scituate and Wellesley. If we have overlooked any other municipalities, our apologies.
According to the ACLU of Massachusetts, the Holyoke City Council last October passed a ban on “temporary” lawn signs during the winter months and prohibited bumper stickers year-round, overriding a veto by Mayor Alex Morse. The ACLU noted that the ordinance theoretically could have banned not just signs favoring one candidate or another but also those saying “Black Lives Matter” or “All Are Welcome Here.” Not surprisingly, with the help of the Boston law firm Prince Lobel, the ordinance was thrown out in federal district court.
Similarly, members of the select board in Scituate agreed to suspend their own sign ordinace after they received a letter from the ACLU informing them that the bylaw violated the First Amendment. The Scituate ordinance restricted political signs to 30 days before an election and mandated that they be removed within three days after.
In Wellesley, a poet named Dan Chiasson ran afoul of town officials after he put up a self-designed “Impeach Trump” banner on his house. According to The Boston Globe, he was told that the banner was too large and too high up, and that he would be fined $300 a day if he didn’t take it down. The Wellesley Townsman reported that Chiasson tweeted out the certified letter he received and asked, “Do you really want to try to enforce this?”
The answer: No, not really. In a statement, the town said that it was “prepared to review its bylaw to ensure that it complies with recent Federal Court decisions on political signs.”
Paul LePage Former Maine governor hides Trump-related spending until after he leaves office
What would the New England Muzzle Awards be without an appearance by Paul LePage? He won on several occasions when he was governor of Maine. Now he can claim his first post-gubernatorial statuette.
According to the Portland Press Herald, receipts that the newspaper obtained as the result of a public documents request show that the then-governor and his staff stayed in more than 40 rooms at the Trump International Hotel in Washington over the course of two years, spending around $22,000 in tax money. Rooms ranged from $362 to more than $1,000.
Now what, you might ask, does this have to do with the Muzzles? Very simple: LePage refused to comply with Maine’s public records law when he was governor, so the Press Herald was unable to obtain these receipts until after he had left office.
And lest you think this is nothing more than a gotcha story about public officials’ running up the tab while on state business, it turns out that the LePage administration’s high living may be used as evidence in a federal lawsuit filed by the attorneys general of Maryland and Washington, D.C. Their suit claims that President Trump has violated the “emoluments” clause of the Constitution, which prohibits the president from personally benefiting as a result of spending by foreign or domestic government officials. Indeed, U.S. District Judge Peter Messitte specifically cited LePage’s spending as a reason for why he was allowing the lawsuit to proceed. (LePage responded by calling the judge an “imbecile.”)
LePage has hated the news media for years. As governor, LePage said, among other things, that he’d like to blow up the Press Herald and shoot a cartoonist for the Bangor Daily News. Thanks to the Press Herald’s work in documenting LePage’s entanglements with President Trump’s business empire, his attitude about the press is unlikely to improve now that he’s out of office.
Mass. House court officers Overzealous enforcement of a ban on photos interferes with accurate reporting
Four years ago we awarded a Muzzle to two court officers at the Massachusetts House of Representatives for manhandling two reporters and ordering them to leave a meeting of the Democratic caucus, even though members had not voted to close the doors. In a quote that became an instant classic, one of the officers reportedly said, “Why can’t you be a f***ing gentleman?”
You’d think that would be enough censorious action for a lifetime. But no. Once again, we are bestowing a Muzzle upon the House court officers, this time for flipping out when they caught WGBH News political reporter Mike Deehan taking a picture of the vote tally board. Deehan tweeted his out-of-focus effort and added:
Well, I just got yelled at by a House court officer for taking this picture of the tally board after a roll call vote. Again. Good luck finding out how your elected officials vote on legislation, #MApolipic.twitter.com/lDOdv0zNun
It’s a serious issue. Not only is taking a photo of how members voted an accurate, fast way to take notes, but it could make for an interesting story if any votes were changed before the final tally. Needless to say, photos of legislators in action would also be newsworthy.
“It’s just a fantastically stupid and obstructionist rule,” Deehan said in an email. “The press is effectively banned from taking photos of any kind inside the Massachusetts House or Senate Chambers. … All photos, by the press, public or members themselves, are prohibited according to the House rules. Anyone who has ever seen a lawmaker’s social media knows that rule is never applied to members, only the press and public.”
Equally bad is the arbitrary nature of the way the rules are enforced. Deehan said he had permission from Speaker Robert DeLeo’s office to take pictures of the tally board, but the court officer who approached him seemed either unaware of it or uninterested. And, as was the case in 2015, the court officers occasionally bar reporters from meetings even when the members have not voted to go into executive (closed) session. One recent instance involving the House Ways and Means Committee led to an apology — but by then it was too late, as the meeting had gone uncovered.
The Great and General Court of the Commonwealth of Massachusetts is not known for its transparency. But it’s long past time to drop the ridiculous ban on photos — and to make sure that the court officers do not exceed their authority by blocking the press from doing its job.
Rhode Island Division of Taxation Officials tax nonfiction while exempting fiction. Or do they?
In 2013 the Rhode Island General Assembly passed a law exempting writers, composers, and artists who sell their own work from the 7 percent sales tax if they live in the state. But the law left a question to be answered: Who was covered? And who wasn’t?
For writers, the answer apparently given by the state’s Division of Taxation was bizarre indeed: those who produce fiction and poetry are exempt. But those who write non-fiction are not covered and must pay the tax. Although it’s unclear exactly who came up with this interpretation, it is based on the idea that non-fiction does not meet the “original and creative” test written into the law.
Among those on the receiving end of this edict was Paul Caranci, a former member of the North Providence Town Council, former FBI undercover agent, and the author of books such as “Scoundrels: Defining Corruption Through Tales of Political Intrigue in Rhode Island.” According to The Providence Journal, Caranci “sits side-by-side at flea markets, craft fairs, farmers markets and book expos with writers exempt from the state sales tax, while his work is not.” As Caranci put it in an interview with NPR, “It’s a strange enforcement of the law.”
Last fall Steven Brown, executive director of the ACLU of Rhode Island, wrote to the Division of Taxation and the State Council on the Arts only to be rebuffed by a response that was a model of bureaucratic vagueness. So the ACLU sued in federal court, arguing that it was impossible and unconstitutional for the government to try to make a distinction between fiction and poetry on the one hand and non-fiction books such as Norman Mailer’s “The Executioner’s Song” and Truman Capote’s “In Cold Blood” on the other.
But wait. The Division of Taxation later issued a statement that said the ACLU had misinterpreted its rule, claiming that “the sale of a book by its author may qualify for a tax exemption whether the book is a work of fiction or non-fiction,” but that “the book must be a one-of-a-kind, limited edition work, and must not be created or executed for industry-oriented, commercial or related production.”
The ACLU’s Brown, though, says that clearly contradicts the testimony gathered in the course of researching the lawsuit — such as that of Caranci, a plaintiff in the suit, who was told by the state that he had to charge sales tax. Another plaintiff, Steven Porter, said he had been granted an exemption for his fiction but was told he had to charge sales tax for his non-fiction books.
In a statement, Brown said, “The state’s post hoc denial that it has treated fiction and non-fiction books differently flies in the face of the evidence presented in our lawsuit and the unwavering testimony of local authors. Their new claim that they instead grant the exemption for only ‘one-of-a-kind, limited edition works’ flies in the face of the evidence concerning the many clearly non-limited-edition fiction books that have qualified for an exemption. The state’s muddled rationales only highlight the importance of our First Amendment claims.”
Brian Ernest Principal tells a Trump-supporting freshman to cover up her #MAGA T-shirt
Students at Epping High School in New Hampshire were encouraged to don the red, white and blue this past April for what was dubbed “America Day.” Ciretta MacKenzie, a freshman, was excited to take part. But her choice of attire — a T-shirt that said “Trump: Make America Great Again” — did not meet the approval of school authorities.
Ciretta was called to the front office, where the principal, Brian Ernest, told her that the message was divisive and that she would have to cover it up. According to the New Hampshire Union Leader, Ernest sent an email to Ciretta’s mother in which he “explained that we need to separate political views from patriotism. In today’s climate it is important to not mix church or state.”
For better or worse, Donald Trump is the president. And so, as you might expect, all hell broke loose over Ernest’s act of censorship. School Superintendent Valerie McKenney ordered an investigation. Ernest, to his credit, quickly realized his mistake and issued a public apology. “In retrospect, I want to fully acknowledge my error in judgment and sincerely apologize if my actions were misinterpreted and offended anyone,” he said, according to CBS Boston. “That was never my intention.”
Ciretta turned out to be a forgiving soul. At a school board meeting to discuss the incident that was attended by about 150 people, she said she accepted Ernest’s apology, adding, “I do respect my principal. Even though I do not agree with the decision he made, I do still love him and I do still believe in giving people second chances. I’m very proud of our whole entire community, that everyone can come together and not be angry and not be haters.”
Thanks to the mature reaction of school officials, Trump supporters, and a high school freshman, the situation was resolved amicably. But Ciretta MacKenzie never should have been humiliated by her principal for expressing her First Amendment views. School officials need to make sure this doesn’t happen again.
Massachusetts State Police From destroying and suppressing public records to spying on motorists
In January 2018, the Massachusetts State Police were in the midst of an internal audit into possible overtime abuse. Among the records needed to conduct that audit were traffic citations, which could be used to prove whether state troopers turned in fraudulent documents so they could collect overtime and hide the fact that they were not actually working.
Yet, as Matt Rocheleau reported in The Boston Globe recently, the agency destroyed several years’ worth of traffic records — documents that are now needed as part of a federal investigation so serious that U.S. District Judge Mark Wolf recently asked prosecutors why they were not considering building an organized-crime case under the RICO laws.
State Police spokesman David Procopio told the Globe that the destruction was routine and that the agency at that time had not been informed of any criminal investigation — even though the documents wererelevant to the internal audit that was already under way. Procopio’s reasoning did not impress former state inspector general Gregory Sullivan, who was quoted as telling the Globe, “Wow. I’m dumbfounded about hearing this. This is blatant, outrageous, and worse than the underlying crime. It’s 10 times more serious.”
The destruction of records deserves a Muzzle because not only does it hamper an investigation into serious wrongdoing, but it also deprives the press and the public of important information. But it was only one in a series of actions by the State Police against freedom of information and civil liberties during the past year.
Last October, the website MassLive reported that the State Police had defied an order from the secretary of state’s office to release the audio of a 911 call — a public record — related to a quadruple homicide in West Brookfield.
In March, the Cape Cod Times reported that the State Police were secretly recording the license plates of every motor vehicle that travels across the Bourne and Sagamore bridges, a practice whose constitutionality has been called into question in a drug case. The Globe published a follow-up, and earlier this month it was reported that the state’s Supreme Judicial Court will take up the issue.
The First Amendment is grounded in the idea that the public’s business should be conducted in public. All too often, though, the State Police — the commonwealth’s leading law-enforcement agency — acts like it is above the law.
Noel Green Students teach their principal a lesson in freedom of the press
Four students from The Register, the student newspaper at Burlington High School in Vermont, stepped forward this past February to receive a Special Recognition Award at the annual meeting of the New England First Amendment Coalition. The students had made use of public records in reporting a story about disciplinary charges that had been filed against their guidance counselor.
It was a proud moment. But what had brought them to Boston that day wasn’t their enterprising journalism — it was their courage in standing up to their interim principal, Noel Green, who had ordered that their entirely accurate story be removed from The Register’s website.
The students fought back. In an interview with the Burlington Free Press, they said they went along with deleting the story in order to protect their faculty adviser. But they didn’t stop there. They contacted the Student Press Law Center in Washington, which informed them that school officials were violating a Vermont law aimed at protecting student journalists from censorship.
Retired Free Press reporter Michael Donoghue, who is first vice president of the New England Coalition and president of the Vermont Press Association, praised The Register’s story, saying in an interview with his old paper, “There was no interpretation or slant. They wrote a factual report based on public documents.”
Ironically, the state law that ultimately led to the students’ victory had been enacted two years earlier after school authorities killed a story in The Register about a sign held up at a football game claiming facetiously that Burlington players were gang members or convicts. Without that law, the more recent controversy might have had a different outcome.
“This has been the biggest learning experience of our lives,” Julia Shannon-Grillo, one of the students who was honored last February, told the Free Press.
The award citation put it this way: “By appearing at city meetings, speaking to the media and working with press and First Amendment groups, the student journalists prevailed in their battle with the administration and reposted their story. The School Board appointed the editors to a special committee to review the school’s student publication policies to assure that they conform to state and federal law. As a result of the students’ efforts, Burlington High School now has an updated policy that is designed to prevent similar censorship in the future.”
Should a radical activist be allowed to publish instructions for using a 3D printer to create a fully operational plastic handgun? That’s the question facing U.S. District Court Judge Robert Lasnik, who has said he will hear arguments this Friday in a case that pits freedom of speech against public safety.
The activist, Cody Wilson, has been trying to upload those plans for five years but had been prevented from doing so by the federal government. He nearly succeeded last month, after the State Department withdrew its objections. But Lasnik issued a temporary restraining order in response to a lawsuit filed by eight states and the District of Columbia. Although Lasnik, who’s based in Seattle, acknowledged that the case presented “serious First Amendment issues,” he said there was “a likelihood of irreparable harm” if Wilson — described as a “techno-anarchist” in a 2015 Wired magazine profile — had been allowed to move ahead.
If Wilson wins, it is easy to conjure up the evils that might result: an endless supply of untraceable guns that could be smuggled past metal detectors at airports and elsewhere and that could be printed out by thrill-seeking adolescents once 3D technology becomes sufficiently cheap and reliable. But as an equally fraught case from a generation ago demonstrates, the concerns raised by dilemmas like these invariably prove to be overblown.
In 1979, The Progressive, a small left-wing magazine based in Madison, Wisconsin, sought to publish an article on how to build a hydrogen bomb. The magazine claimed that Howard Morland, an Air Force pilot-turned-freelancer writer, had obtained the information entirely from public sources. The government argued that some of the information Morland used wasn’t publicly available, and that in any case he had pulled the information together in such a way that it could accelerate the process of rogue nations acquiring nuclear weapons.
Publishing instructions on how to build a nuke might not seem strictly necessary. But The Progressive’s editor, Erwin Knoll, defended his motives. In an essay he wrote when Morland’s article was finally published, he said the article was meant to spark debate. “We hope that debate will be a beginning — a beginning of a process in which all of the nuclear policies pursued by our Government will be held up to public scrutiny and review,” he wrote. “We hope that the process will end in a reversal of those policies and an end to the suicidal nuclear arms race in which we have been unwitting, uninformed participants.”
Like Judge Laskin in the plastic-handgun case, U.S. District Court Judge Robert Warren issued a temporary restraining order against The Progressive, arguing that the harm caused by censorship paled in comparison to the prospect of nuclear war. “A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.”
In arriving at his decision, Warren relied on two Supreme Court precedents. In Near v. Minnesota (1931), the court identified a few narrow exceptions to the First Amendment prohibition on censorship — including a serious breach of national security, which Warren applied to the Morland article. In New York Times v. United States (1971), the court ruled that the Times and The Washington Post could publish the Pentagon Papers, the federal government’s secret history of the Vietnam War, which would seem to cut against the government’s case regarding The Progressive. Warren, though, decided that the Pentagon Papers involved historical material rather than the possibility of future harm, and that The Progressive was also seeking to violate a specific federal law prohibiting the publication of atomic secrets.
Judge Warren was well aware of his responsibility as a guardian of the First Amendment, and he urged the two parties to come up with a voluntary agreement that would have allowed The Progressive to publish while omitting the most incendiary material. Before he could issue a final ruling, though, the matter was rendered moot when a newspaper in Madison published a letter containing substantially the same information as the Morland article. The case was dropped, and The Progressive published the Morland article under the headline “The H‐bomb secret: How we got it — why we’re telling it.”
The government’s and Judge Warren’s concerns proved to be unfounded. The information revealed by The Progressive has never been traced to the development of a nuclear weapon, even though terrorist groups such as Al-Qaeda and ISIS would love nothing better than to develop their own nukes. Building nuclear weapons involves a lot more than reading an article about it.
The threat posed by Cody Wilson’s plastic-handgun instructions is less existential but also more immediate. Though buying guns illegally (or stealing them) is easier than printing them out today, that is likely to change over the next few years. But the way to ensure public safety without violating the First Amendment is to outlaw activity, not speech. Plastic handguns are illegal unless they contain metal components. Guns without serial numbers are illegal.
“The distinction between regulating information about guns and regulating a tool that would automatically allow someone to manufacture a gun matters,” writes Boston University law professor Andrew Sellars at Slate. Echoing Erwin Knoll’s earlier argument, Sellars adds: “We protect speech so strongly under the First Amendment in part because we want to ensure unfettered discussion of policy matters.”
By temporarily preventing Wilson from publishing his blueprints, Judge Lasnik has already violated Wilson’s — and our — First Amendment rights. Let’s hope that on further reflection he comes to understand that when we try to ensure safety by suppressing free speech, we end up with neither.
It’s all about Trump. And so it should come as no surprise that the 2018 New England Muzzle Awards have taken on a distinctly orange hue, singling out — among other offenses — thuggish attempts by President Donald Trump and his minions to suppress speech they found embarrassing.
One of those coveted Muzzles is being presented to the president himself, who, through his lawyer, Michael Cohen, threatened a member of the Harvard Lampoon with expulsion over a harmless prank. The other goes to former Trump communications director Anthony Scaramucci, who raised the specter of a libel suit against a student who’d written a critical op-ed piece about The Mooch in the Tufts campus newspaper.
On a considerably lesser scale, former president Barack Obama should be on the lookout for a golden Muzzle in his mailbox as well. Earlier this year, Obama (or someone he was associated with) demanded that his remarks to several thousand people at a Boston conference on sports statistics, of all things, be kept off the record. Team Obama’s action was as absurd as it was inappropriate — and, as they learned, unenforceable as well.
Of course, the Muzzles encompass far more than presidential politics. This year’s winners range from Boston Police Commissioner Bill Evans, who expressed unseemly pleasure that right-wing activists couldn’t be heard at a “Free Speech Rally” they had organized last August, to Massachusetts Attorney General Maura Healey, whose oft-stated commitment to open government is contradicted by her censorious interpretation of the state’s public-records law. For good measure, we single out two Rhode Island legislators who are pushing a priggish piece of legislation that has become known as the “internet porn tax.”
This year’s Muzzles are being awarded against a backdrop of fear and hatred whipped up by President Trump, whose cries of “fake news” have served to delegitimize the press among his followers and to undermine the First Amendment. Earlier this year it was learned that the White House had obtained the phone and email records of a New York Times journalist in secret, which denied her an opportunity to fight that order in court. More broadly, Trump triggered a humanitarian catastrophe with his policy of separating the families of undocumented immigrants when they try to enter the United States, calling into question the nation’s commitment to the rule of law. He eventually backed down, but the fate of the children who were taken away from their parents is still unclear — especially given his subsequent remark that undocumented immigrants should be turned away at the border without due process.
The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the sixth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
Over the weekend Apple removed software from its Chinese App Store that enabled iPhone users to get around censorship laws in that country. The action was widely portrayed as a blow to those working for freedom and human rights in China. And it seemed especially tawdry following as it did the recent death of Nobel Peace Prize winner Liu Xiaobo while in Chinese custody.
But I would argue that Apple did the right thing. My intention is not to write a love letter to Apple, whose leadership, I’m sure, was motivated more by commerce rather than by conscience. Nevertheless, Apple’s decision was a welcome example of Americans’ dealing with the world as it is rather than as they wish it to be. Our values are not everyone’s values.
Typical of Apple’s critics is New York Times technology columnist Farhad Manjoo, who couldn’t understand why Apple would back down so quickly after successfully fighting the FBI’s demand last year to provide a software key to a terrorist’s iPhone — and, thus, to all other iPhones as well.
“When Apple took a public stand for its users’ liberty and privacy, the American government blinked,” Manjoo wrote. “Yet in China over the weekend, when faced with a broad demand by the Chinese internet authority, it was Apple that blinked.” Yes. But what Manjoo was describing was not situational ethics on Apple’s part. Rather, it was the difference between the United States, a free country ruled by laws, and China, a repressive authoritarian state. In fact, as Manjoo conceded later in his column, Apple would likely have accomplished nothing by pushing back against Chinese officials.
China may show little respect for the rights of its citizens, but it is part of the world community. It makes sense to ban interactions with pariah regimes such as North Korea and Syria, and to prohibit companies from doing business in China in a way that leads to the direct persecution of citizens (something that could in fact arise from Apple’s plan to build a data center in China) or that involves prison labor. But we have no more right to impose our vision of free speech on China than, say, Canada does to insist that we adopt its immigration policies as a condition of doing business.
Besides, even most Western democracies do not have as expansive a view of free speech as we do — yet no one seems to find it outrageous that we accommodate ourselves to their laws when doing business overseas. In the early days of the commercial web, Yahoo was fined $15 million for violating French hate-speech laws that prohibited the display and sale of Nazi memorabilia. Such laws would be regarded in the United States as an outrage against the First Amendment. But of course Europe has a history with hate speech that, so far, we have been fortunate to avoid.
More recently, Google has had to contend with “the right to be forgotten,” as European Union countries — again led by France — have passed laws requiring that certain types of private information be removed from the internet. To comply, Google has set up an “EU Privacy Removal” form that lets users fill out a questionnaire about offending material.
As an online columnist for The Guardian from 2007 to ’11, I had to contend with British libel laws several times. My editors told me that some of my media and political commentary had to be toned down even though it wouldn’t have raised an eyebrow in this country. Indeed, at one time it was common for plaintiffs to engage in “libel tourism,” filing suits in the U.K. because they were more likely to win there than in the U.S. Reforms have made that less of an issue, but it is still far easier to win a libel suit in London than in New York. The difference is that, under the First Amendment, speech about public officials and public figures is protected except when it is egregiously and deliberately false.
All of this, I realize, is rather far afield from the oppression and violence experienced by anyone in China who refuse to conform. These examples do show, however, that American businesses see nothing abnormal about adapting their practices to other countries’ laws and traditions, even on fundamental values like freedom of expression.
In 1940 Sen. Kenneth Wherry, a Nebraska Republican, cast an eye toward China and declared, “With God’s help, we will lift Shanghai up and up, ever up, until it is just like Kansas City.” It was a naive view of American exceptionalism then, and it is expressed today by those who think we can use our economic leverage to bend China to our will.
We can’t, and Apple’s executives recognize that. Despite its repression, China today is freer than it was when Richard Nixon made his historic visit. We can hope that it will be more free in the future. By engaging with the Chinese on their own terms, we might be able slowly help that process along.
The public square has long since gone private. As far back as 2003, we bestowed a New England Muzzle Award upon a mall that ordered a 60-year-old customer arrested and charged with trespassing because he refused to remove his antiwar T-shirt — a T-shirt he’d bought at said mall.
These days, though, the idea that privately owned shopping centers have superseded the village common seems almost quaint. The public square has gone virtual. Unaccountable internet companies control our discourse and censor our voices for reasons that can seem both absurd and mysterious.
We live in a time in which YouTube restricts access to a pro-Israel video made by the famed Harvard law professor Alan Dershowitz. In which the Museum of Fine Arts’ Instagram account runs afoul of an anti-nudity rule that applies not just to pornography but to art. And in which the Boston Police Department proposes using sophisticated software to monitor our activities on social media — for our own good, of course. The BPD backed down, but you can be sure that won’t be the last we hear of it.
It seems somehow appropriate that on this, the 20th anniversary of the Muzzle Awards, assaults on freedom of expression are taking a technological turn. But there are still plenty of instances of old-fashioned suppression — such as a publicly funded charter school in Malden whose ban on hair extensions affects black female students almost exclusively; Maine Gov. Paul LePage, who has refused to turn over public records about his support for states seeking to discriminate against same-sex couples and transgender youth; and a New Hampshire publisher who censored information about his own newspaper’s real-estate dealings.
The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the fifth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
The envelopes, please.
YouTube: The Internet Giant Censors Videos By Alan Dershowitz And Others
Harvard Law School professor Alan Dershowitz’s staunchly pro-Israel views are well known. But if he had to rely on YouTube to spread his message, he might find himself crying in the wilderness.
Last October, Hiawatha Bray reported in The Boston Globe that educational videos featuring Dershowitz and several other speakers had been restricted by YouTube, an internet giant that, in turn, is owned by Google, an even larger internet giant. The videos were produced by Prager University, an educational service begun by Dennis Prager, a conservative radio talk-show host.
As Bray noted, none of the videos included any foul language, violence, or sexually explicit content. Nor could it be determined why they were suppressed. Had the videos somehow run afoul of Google’s notoriously opaque algorithms? Had someone flagged the content as objectionable?
Not that it was especially difficult to watch the videos. The content was blocked only for users who had turned on YouTube’s “restricted” mode, which, according to the website, “hides videos that may contain inappropriate content flagged by users and other signals.” All anyone would have to do is turn it off. Still, it sent a signal that there was something wrong with what Dershowitz and the others were saying.
In a follow-up piece for National Review, Prager wrote that 21 videos had originally been restricted, and that five had been restored. The topics included radical Islam, abortion rights, and a defense of police against charges of racism. “Obviously, … the explanation is not algorithms that catch violence and sex,” Prager wrote. “Rather, Google/YouTube doesn’t want effective (each video has at least 1 million views) conservative videos.”
He added that Dershowitz’s video “Israel’s Legal Founding” had been restored because of negative publicity. If it was, it was later blocked again — as I discovered when I tried accessing it in restricted mode recently.
Google, like Facebook, has enormous power and influence, and has become far more than a corporation with its own agenda and interests. It’s a place where we spend a significant amount of our lives. It’s long past time for Google to recognize its free-speech obligations.
Bill Evans: The BPD Commissioner’s Officers Choose Surveillance Over Liberty
In the never-ending struggle between security and liberty, it is the job of the Boston Police Department to err on the side of security. And it is our job to push back. Thus has Commissioner Bill Evans earned a Muzzle for allowing his officers to infringe on the free-expression rights of protesters.
According to The Boston Globe, this past March, members of an organization calling itself the Keep it Real 100 for Affordable Housing and Racial Justice showed up at a board meeting of the Boston Planning and Development Agency to complain about the lack of affordable housing in a development plan for the Forest Hills-Jackson Square area. Officers began video recording some of the protesters, creating what some witnesses said was an atmosphere of intimidation.
Officer Rachel Maguire, the BPD spokeswoman, compared the situation to the right that citizens have to record officers, and said such recording often takes place at large gatherings such as the Boston Marathon and outdoor demonstrations. Needless to say, though, there is a considerable power differential between police officers and citizens. Citizens recording officers simply cannot be compared to officers recording citizens. And a public meeting in City Hall is a very different matter from a huge outdoor gathering.
Fortunately, the BPD backed down from yet another attempt to monitor people exercising their right to free expression — a proposal to sift through people’s social-media activities, opposed by the ACLU of Massachusetts. But surveillance of activities protected by the First Amendment is no way to protect public safety. Evans needs to find a better solution.
Jim Konig: A Publisher Who Believes That All The News About His Newspaper Isn’t Fit To Print
A community newspaper has an obligation to be open and transparent about its operations. After all, the local paper often enjoys a near-monopoly on news. If its owners choose to suppress important information, there is virtually no other place to learn about it.
So when Roger Carroll, the executive managing editor of The Telegraph of Nashua, New Hampshire, resigned last fall, eyebrows were understandably raised. In a radio interview, Carroll told Nancy West, founder of the nonprofit news organization InDepthNH, that he quit after publisher Jim Konig ordered him to delete parts of a story about the paper’s move to new headquarters in downtown Nashua.
According to the print version of the article, The Telegraph’s new building was purchased for $650,000 and had an assessed value of $1.8 million. Those details, as well as the fact that the paper is owned by Ogden Newspapers of Wheeling, West Virginia, were removed from the online version.
Carroll said Konig told him the order to delete those facts had come from West Virginia. But Konig wins the Muzzle, as he refused an opportunity to clarify matters when reached by InDepthNH and the New Hampshire Union Leader.
“I thought this kind of censorship showed a staggering disrespect to the role of the newsroom and to the Telegraph’s readers,” Carroll told West in a follow-up interview. Reached by the Union Leader, Carroll added, “It felt like censorship — that is what it felt like.”
Konig, meanwhile, has moved on, and Carroll is now working for Vermont’s Rutland Herald. “Leaving those folks behind was very hard,” Carroll told the investigative news site VTDigger about his decision to quit his job at The Telegraph. “But at the end of the day I had to be able to look in the mirror.”
Mystic Valley Regional Charter School: Its Prohibition Against Hair Extensions Is Racially Discriminatory
A school’s dress code includes a provision that is written in seemingly neutral language, but in practice affects black students while having little impact on white students. That’s discrimination, and it’s not a difficult concept to understand.
Unless you are part of the leadership at the Mystic Valley Regional Charter Schoolin Malden, which has grudgingly, and only temporarily, suspended its ban on hair extensions under pressure from Massachusetts Attorney General Maura Healey.
The taxpayer-supported school, which serves Malden and several surrounding communities, has an extensive dress and grooming code that school officials say is aimed at preventing more affluent students from flaunting their wealth. But the families of some black female students argue that long braids, sometimes supplemented with extensions, are an expression of cultural pride.
Black students with long braids and dreads were taken to the office and inspected to see if they were wearing extensions. Punishment was meted out, including detention and suspension from activities such as athletics and the prom. White students with dyed hair were reportedly not subjected to such treatment. Despite Healey’s investigation, protests, and complaints from the ACLU and the NAACP, the school has backed down only partially and with great reluctance, displaying an unusually obtuse sense of racial insensitivity.
A letter released by the school after the trustees voted to suspend the policy read in part: “Some have asserted that our prohibition on artificial hair extensions violates a ‘cultural right,’ but that view is not supported by the courts, which distinguish between policies that affect a person’s natural ‘immutable’ characteristics and those that prohibit practices based on changeable cultural norms.”
As my “Beat the Press” colleague Callie Crossley recently wrote in criticizing Mystic Valley: “For black women, hair is a cultural flashpoint, never as simple as ‘it’s just hair.’ Those of us who wear our hair in afros, twists, locks or braids are often subject to unsolicited commentary, sometimes overtly racist.”
Free expression covers a wide variety of activities, including hair and dress. It would be bad enough if Mystic Valley’s policy were not racially discriminatory. But it is, and that makes it indefensible on any grounds.
Cardno ChemRisk: The SJC Sees Through Its Attempt To Use Libel As A Tool Of Intimidation
The libel laws are intended to give people and organizations a chance to fight back against false, defamatory statements. In the wrong hands, though, libel can be wielded by the powerful as weapon to harass critics.
Such was the situation that two environmental activists found themselves in after they wrote an unpaid article for The Huffington Post. The 2013 article, by Karen Savage, who at the time was a Boston middle-school teacher, and Cherrie Foytlin of Rayne, Louisiana, claimed that a controversial consulting company called Cardno ChemRisk had ties to the oil industry. Those ties, they said, compromised the company’s ability to conduct a study as to whether workers involved in the cleanup of the 2010 Deepwater Horizon explosion were exposed to harmful levels of hazardous airborne substances.
ChemRisk wins a Muzzle Award for filing a libel suit against the two women — something The New York Times notes that it did not do even when tough reporting on the company by The Wall Street Journal in 2005 became a storyline in the environmental thriller “Erin Brockovich.” The Times article suggested that ChemRisk was more comfortable taking on two unknown activists than the powerful Journal, although a lawyer for the company denied it.
In February of this year the Massachusetts Supreme Judicial Court threw out the lawsuit, essentially agreeing with the two women, who had invoked the state’s anti-SLAPP law (Strategic Litigation Against Public Participation), that ChemRisk had sued solely in order to silence and intimidate them. According to the website Law360, the SJC ruled that ChemRisk’s claim was “devoid of reasonable factual support or arguable basis in law.”
Despite the victory, the lawsuit may have served its purpose by warning other activists of the consequences they might face if they take the risk of speaking up.
Bill Gardner: New Hampshire’s Secretary Of State Keeps The Absurd ‘Ballot Selfie’ Ban In The News
Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.
In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?
A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.
Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.
Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.
The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”
Paul LePage: Maine’s Governor Refuses To Release Records About His Right-Wing Crusades
You’d think that Maine’s Republican governor, Paul LePage, would be proud to share information about assistance he gave to other states in their quest to squelch same-sex marriage and transgender rights. Apparently not. Because in May, the Portland firm Andrew Schmidt Law had to file a lawsuit under the state’s Freedom of Access statute following what it said was a failed six-month quest to obtain records related to LePage’s out-of-state political activism.
Also sought were records pertaining to LePage’s decision last fall to pull out of the federal government’s refugee resettlement program.
According to the Portland Press Herald, LePage supported Mississippi officials in their bid to overturn a federal judge’s ruling that public employees could not refuse marriage licenses to same-sex couples. LePage also signed on to a lawsuit filed by 10 states after the Obama administration ordered public schools to stop discriminating against transgender students with regard to bathroom and locker-room access.
LePage is a notorious homophobe. Last year The Advocate, an LGBT publication, posted some NSFW comments LePage made to a state legislator in which he defended himself against charges that he’s a racist by going off on a vicious gay-bashing rant.
As for the public records sought by Andrew Schmidt Law, Peter Mancuso, a lawyer with the firm, told the Press Herald that the governor’s office had not turned them over despite promising to do so by March. Nor did the LePage administration respond to several email requests from the paper seeking comment.
Instagram: The Museum Of Fine Arts Runs Afoul Of The Photo-Sharing App’s Ban On Nudity
YouTube is not the only internet behemoth upon whom we are bestowing a Muzzle Award. So is Instagram, the photo-sharing app owned by Facebook. As with YouTube and its parent company, Google, the Instagram example highlights the erosion of freedom that can occur when our public discourse is turned over to unaccountable corporations.
The Boston Globe’s Malcolm Gay reported in April that Instagram had removed three images of nude models posted by the Museum of Fine Arts to promote an exhibit of photographs by Imogen Cunningham. The images violated Instagram’s one-size-fits-all terms of service, which prohibit photos of female nipples. Similar cases involving the Philadelphia Museum of Art and New York’s Metropolitan Museum of Art were also reported.
“I’m stunned. These images are so subtle and beautiful and so abstract,” MFA photography curator Karen Haas told the Globe. “They’re all about shapes — about turning the body into something that’s really confounding and difficult even to read as a body.”
But though the Muzzle goes to Instagram, surely a Muzzle Jr. is in order for the Globe. Because the artwork it used to illustrate the story was itself a censored, G-rated version of Cunningham’s photos. As my “Beat the Press” colleague Emily Rooney ranted several days after the Globe’s story was published, “They ruined their own story by doing the exact same thing they were accusing Instagram of doing. It was embarrassing, I thought.”
New Haven Police Department: A Photojournalist Is Arrested And Charged Following ‘A Ten-Second Misunderstanding’
For years, police officers in New Haven have struggled with the idea that journalists and ordinary citizens have a First Amendment right to video-record and photograph their interactions with the public. In 2011 I accompanied Paul Bass, the editor and founder of the online New Haven Independent, as he covered a training session for officers following some egregious violations of citizens’ rights, which I wrote about in my book “The Wired City.”
Sadly, the New Haven Police Department still doesn’t get it. Last December, Independent reporter David Sepulveda was arrested and charged with two misdemeanors — interfering with police and third-degree trespassing — after he took photos of a pressure cooker suspected of being a bomb (it wasn’t) and didn’t vacate the scene quickly enough when ordered to do so.
“We recognize that police have legitimate concerns when setting a perimeter around a scene and urge journalists to respect those boundaries, but an arrest is extreme when less draconian remedies would have sufficed,” the Connecticut chapter of the Society of Professional Journalists said in a statement.
In an opinion piece, Bass apologized and conceded that Sepulveda, 64, should have been more responsive and polite in his dealings with the police. But there was no excuse for their subsequent actions, which, according to Bass, included confiscating Sepulveda’s camera and attempting to seize its memory card; wrongly asserting that he had walked into a blocked-off area; and claiming that they didn’t know he was a reporter even though he was wearing a press tag around his neck. As Bass wrote, the police “turned a ten-second misunderstanding into a criminal charge.” He added: “The police had reason to be angry. They didn’t have good reason to handcuff, detain, and arrest a reporter.”
The officer who arrested Sepulveda and the supervisor who seized his camera were cleared by internal-affairs investigators. And so it goes — until the next time the city’s unchastened police encounter someone with a camera and an attitude.
Peter Kilmartin: Rhode Island’s Attorney General Clashes With Governor Over Revenge Porn And Curt Schilling
So-called revenge porn — sexually explicit photos posted on the internet as a form of harassment — is a serious offense. But Rhode Island Attorney General Peter Kilmartin has taken an unserious approach to dealing with it, filing a bill in 2016 so unconstitutionally broad that it was vetoed by Gov. Gina Raimondo, a fellow Democrat. He then turned around and filed it again.
According to The Westerly Sun, Raimondo objected to Kilmartin’s proposal because it “could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, [the legislation] does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.” Kilmartin, playing to the cheap seats, responded by saying “it is a disgrace that the Governor would put the interests of Hollywood elites before that of Rhode Island victims of this horrendous crime that has lifelong impact.”
But as Steven Brown, executive director of the ACLU of Rhode Island, put it in an emailed comment, “These elites apparently include the ACLU, the RI Press Association, the New England First Amendment Coalition, and the Media Coalition, all of whom testified against his bill and in favor of hers. He would rather pass a bill that will end up providing no protection to victims because it will be struck down rather than agree to a ‘watered down’ constitutional one.”
Revenge porn is not the only issue over which Kilmartin and Raimondo have clashed. Raimondo has called for the release grand jury records involving the 38 Studios investigation, better known as the Curt Schilling debacle. Kilmartin objected, the Providence Journal reported, arguing that releasing “names and statements of cooperating witnesses” could “chill the willingness of witnesses to come forward to law enforcement in the future, particularly in cases of public corruption.”
Grand jury deliberations are traditionally kept secret. But in a friend-of-the-court brief, the ACLU of Rhode Island laid out a compelling argument for why the Schilling case should be treated differently.
“Unlike a typical grand jury investigation involving allegations of private crime by private individuals,” the brief said in part, “the investigation of 38 Studios addressed a matter of public policy of extraordinary importance that involved the decision by the state to invest $75 million in public funds. In a well-functioning democracy, the people have a need to know how the state decides to spend public funds, and this need vastly outweighs any minimal interests in secrecy present here.”