Why Apple was right to comply with China’s censorship demands

Photo via Wikimedia Commons.

Previously published at WGBHNews.org.

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.

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Ladies and gentlemen, boys and girls: Presenting the 2017 New England Muzzle Awards

Illustration by Emily Judem of WGBH News

Previously published at WGBHNews.org.

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.”

A shocking breach of the First Amendment

Photo (cc) 2016 by Paul O'Brien.
Photo (cc) 2016 by Paul O’Brien.

The detention of a Canadian photojournalist at the US border is a shocking breach of the First Amendment. Ed Ou says he was stopped on October 1 as he was trying to fly to Bismarck, North Dakota, to cover the Standing Rock protests. According to the New York Times, his phones were confiscated so that authorities could look at his photos, possibly endangering the subjects of those photos.

The Obama years have not been good ones for freedom of the press, as I’ve written in the past. They’re going to get a whole lot worse under Donald Trump, with his call for upending the libel laws and with his thuggish manservant Corey Lewandowski demanding that Times executive editor Dean Baquet be locked up for publishing Trump’s partial tax returns.

The United States currently ranks 41st in press freedom, according to Reporters WIthout Borders. We could be considerably lower than that the next time the ratings are readjusted.

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Presenting the 19th annual New England Muzzle Awards

Illustration by Brendan Lynch/WGBH News
Illustration by Brendan Lynch/WGBH News

Previously published at WGBHNews.org.

An elected school committee that voted unanimously to condemn a newspaper reporter for tweeting out news from a public meeting. A sheriff who flashed his badge while asking store owners to remove posters for his political opponent. Officials in three New England cities who cracked down on panhandlers in clear violation of their free-speech rights.

These are just three of the stories that are featured in the 19th annual New England Muzzle Awards, our Fourth of July roundup of outrages against free speech. All that and Donald Trump, too.

First, though, some good news. Last year we called for reform of the notoriously weak Massachusetts public-records law, which had earned an “F” from the State Integrity Project. At long last, the legislature passed a reform bill, which was signed into law by Governor Charlie Baker on June 3.

The most important part of the law is that, finally, people whose public-records requests are wrongly ignored or turned down may receive expense money to cover their legal fees. The law also puts limits on how much money government agencies can charge for records and mandates that those records be made available electronically when feasible.

“This bill represents a significant step forward for transparency in Massachusetts,”said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, in a statement. “It will do a lot to improve access to public records.”

The law is far from perfect. It still applies only to local government and executive agencies, exempting the governor’s office, the court system, and the legislature. It also extends the amount of time government agencies have to respond to public-records requests—perhaps a reasonable step given how widely ignored the old deadlines were, but something that will have to be monitored.

Another Muzzle note: As we were wrapping up this year’s list, Rhode Island Governor Gina Raimondo vetoed a bill outlawing the posting of so-called revenge porn. As Raimondo rightly observed, “The breadth and lack of clarity may have a chilling effect on free speech. We do not have to choose between protecting privacy rights and respecting the principles of free speech.” We’ll be keeping an eye on this to see if it raises its censorious head during the coming year.

The Muzzle Awards, launched in 1998, were published for many years in the late, great Boston Phoenix, which ceased publication in 2013. This is the fourth 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 …

Continue reading “Presenting the 19th annual New England Muzzle Awards”

Why the case against Gawker threatens free speech

Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.
Hulk Hogan versus Andre the Giant. Photo (cc) by Luis Colás.

Previously published at WGBHNews.org.

Does Hulk Hogan’s invasion-of-privacy suit against the news-and-gossip site Gawker threaten the First Amendment? No. But the way his case is being paid for might.

Last week we learned that Peter Thiel, a Silicon Valley billionaire, had provided about $10 million to help fund Hogan’s case. Such third-party financing is legal, and it proved to be a sound investment: in March, a Florida jury found that Gawker had invaded Hogan’s privacy by publishing a video of him and a friend’s wife without permission and awarded him $140 million.

Now, first things first. If you care to immerse yourself in the details of the case, you will find all kinds of contradictory statements as to whether Hogan (real name: Terry Bollea) and his paramour, Heather Clem (wife of Bubba the Love Sponge Clem; and yes, that’s his real name), knew or didn’t know they were being recorded and did or didn’t expect that the video would somehow become public.

But the law involving invasion of privacy is reasonably clear. It can be traced back to an article that future Supreme Court justice Louis Brandeis and his law partner, Samuel Warren, wrote for the Harvard Law Review in 1890. The principle is explained succinctly in this warning to journalists published by the Reporters Committee for Freedom of the Press:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person; and (b) is not of legitimate concern to the public.

Hogan’s status as a public figure makes (b) a little iffy, and Gawker tried to argue that Hogan’s boasts about his sexual prowess made the sex tape newsworthy. That strikes me as the sort of issue that a jury could legitimately decide either way. As First Amendment expert Erwin Chemerinsky told the New York Times when the verdict was handed down, “I think this case establishes a very limited proposition: It is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent. I don’t think it goes any further than that and I do not see a First Amendment basis for claiming that there is a right to do this.”

There matters stood until May 24, when Ryan Mac of Forbes revealed that Thiel, a PayPal cofounder and “an eccentric figure in Silicon Valley who has advocated for teenagers to skip college and openly supported Republican presidential candidate Donald Trump,” was the money behind the Hogan suit. Thiel, Mac wrote, had been harboring a grudge against Gawker Media and its publisher, Nick Denton, since 2007, when Denton’s Valleywag site outed Thiel as gay.

The next day Thiel came clean in an interview with Andrew Ross Sorkin of the New York Times, saying, “I refuse to believe that journalism means massive privacy violations. I think much more highly of journalists than that. It’s precisely because I respect journalists that I do not believe they are endangered by fighting back against Gawker.”

As I’ve argued, Hogan’s case against Gawker was well within the bounds of existing privacy law. Moreover, it’s perfectly legal to finance someone else’s lawsuit. Yet numerous free-speech advocates have expressed horror at the Thiel revelation.

Washington Post media columnist Margaret Sullivan compared Thiel’s actions to the Edward Snowden affair and to Senator John Thune’s thuggish (my word, not hers) demand that Facebook account for perceived liberal bias in its Trending Topics feature.

Technology pundit Mathew Ingram of Fortune added that the Hogan case has now “become more about an attempt to bankrupt a publication that a billionaire investor dislikes for personal reasons. And that has disturbing implications for freedom of the press.”

Nick Denton himself, in an open letter to Thiel oozing with self-justifying obnoxiousness, wrote, “The best regulation for speech, in a free society, is more speech. We each claim to respect independent journalism, and liberty. We each have criticisms of the other’s methods and objectives. Now you have revealed yourself, let us have an open and public debate.”

Ingram and other defenders of Gawker point to some troubling aspects of Thiel’s involvement that do, in fact, have some important First Amendment implications. For instance: Hogan’s lawyer apparently insisted on a provision that Gawker Media’s insurance company not be allowed to pay the award, which strongly suggests that the motive behind the suit was to put Denton out of business rather than receive just compensation for the site’s transgressions.

In addition, Ingram notes, Thiel has said he’s backing several other lawsuits against Gawker. Although he hasn’t identified those suits, that may include one brought by V.A. Shiva Ayyadurai, who’s going after Gawker for calling his claim to have invented email fraudulent. Really?

The $140 million awarded to Hulk Hogan seems absurdly high, and the case is under appeal. Meanwhile, numerous reports suggest that Gawker Media is in serious financial trouble as a result of the case.

So we are faced with the prospect that a billionaire may secretly use his money to drive a news organization out of business. Gawker Media may be a singularly unsympathetic defendant, but that strikes me as the sort of money-fueled power imbalance that the First Amendment ought to expose, not enable. Is there anything we can do about it?

As Timothy B. Lee points out at Vox, “the law used to bar unrelated third parties from paying someone else to engage in litigation and financing a lawsuit in exchange for a share of the damages.” Unfortunately, it’s not likely in the current political climate that such a ban would be reimposed.

At the very least, though, efforts such as Thiel’s should not be secret. Denton’s lawyer should have been allowed to present information about how the lawsuit against Gawker was being financed, and to have an opportunity to question Thiel in front of the jury about his activities and motives.

What Warren and Brandeis wrote 126 years ago seems, if anything, even more applicable today:

The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.

But Brandeis may yet come to Denton’s rescue. Whether Denton knew it or not, it was Brandeis he was channeling in his call for more speech. As Brandeis wrote in the 1927 case of Whitney v. California: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

So let Hulk Hogan sue. Let Peter Thiel finance that suit. But let it play out in the light of day so that all of us, including jurors, can weigh and assess everyone’s motives—not just Hogan’s, or Mrs. The Love Sponge’s, or Nick Denton’s, but Thiel’s as well. It’s not a perfect solution, but surely openness would help alleviate any free-speech concerns raised by Thiel’s surreptitious activities.

No, the Hulk Hogan verdict doesn’t threaten free speech

Hulk Hogan with a fan in 2008. Photo (cc) by Rene Passet.
Hulk Hogan (or more likely an impersonator) with a fan in 2008. Photo (cc) by Rene Passet.

Based on my layman’s understanding, it seems to me that the $115 million verdict against Gawker in the Hulk Hogan case fits neatly within existing privacy law. I don’t see how it sets any precedent or poses a threat to the First Amendment.

One question that’s worth asking: Will the verdict have a chilling effect on publishers? I don’t see how. In fact, I don’t think any reasonable person would have thought that he or she could publish a video without permission of someone having sex and not risk serious legal action. Gawker is an outlier. Even observers not familiar with Gawker should have understood that there’s something deeply dysfunctional at a news organization whose former editor jokes about child pornography at a deposition.

Our modern understanding of privacy law is rooted in Samuel Warren and Louis Brandeis’s 1890 Harvard Law Review article “The Right to Privacy.” It’s not that long, and it’s a good read. The first of Warren and Brandeis’s six principles—newsworthiness—is what Gawker hung its hat on in its defense. “The right to privacy does not prohibit any publication of matter which is of public or general interest,” Warren and Brandeis write.

Gawker sought to stretch the boundaries of “public or general interest” way past the breaking point. Yes, Hulk Hogan is a public figure, which means he has fewer privacy rights than most of us. And yes, he bragged about his sexual prowess. But it doesn’t follow that it’s therefore OK to post a video of him having sex without getting his and his partner’s permission, regardless of whether he knew he was being recorded.

Legal experts are all over the place, of course, but Daniel Solove, a privacy expert and George Washington University Law professor, begins a commentary in The New York Times with this:

Gawker’s posting of the Hulk Hogan sex video is not speech that the First Amendment right to free speech does or should protect. Sex videos, nude photos and revenge porn—even of famous people—are not newsworthy. They are not of legitimate public concern.

Gawker founder Nick Denton will appeal, and it’s possible that he’ll win. If the verdict stands, though, it should serve as nothing more than a common-sense reminder that though the First Amendment’s protections are vast, they are not limitless.

Note: A Media Nation reader writes: “I am 99.9 percent sure that is not Hulk Hogan in the photo.” She may be right, and I’ve edited the caption accordingly.

There’s nothing unusual about contempt for journalism

This may surprise you, but I think my fellow First Amendment advocates are overreacting to the video of University of Missouri professor Melissa Click going off on Mark Schierbecker, who was shooting video of protesters confronting Tim Tai, a student photographer who bravely stood his ground in the face of intimidation.

Click has come under fire for yelling, “Who wants to help me get this reporter out of here? I need some muscle over here.”

My lack of apoplectic outrage does not derive from support for Click’s actions; far from it. Rather, my views are based on what appear to be Click’s ordinary — as opposed to extraordinary — contempt for the role of journalism in documenting public events.

Part of the anger directed toward Click comes from earlier, erroneous reports that she is a journalism professor. In fact, she is an assistant professor of mass media in Mizzou’s communication program, and she has produced numerous academic articles about pop culture. For instance, here is the title of a 2013 journal article she co-authored: “Making Monsters: Lady Gaga, Fan Identification, and Social Media.” She earned her Ph.D. from the Department of Communication at UMass Amherst.

(I also see that she has some sort of affiliation with Mizzou’s School of Journalism. But based on the bio I’ve linked to above, which includes her C.V., it does not appear that she teaches any journalism classes. I hope not.) [Update from the comments: Click’s “courtesy appointment” in the j-school is being reviewed.]

I’m also not moved by the argument that, as an employee of a public university, she was legally obligated to protect Schierbecker’s First Amendment rights. I’d argue instead that she was exercising her own First Amendment rights, and that the threat implicit in her “muscle” comment hardly rises to the level of incitement.

Possibly the most disturbing aspect of Click’s outburst is that a fortysomething professor would become so emotionally involved in a student protest. But I’m not here to psychoanalyze her.

If Click were a journalism professor, I’d join with those saying she should be fired. As it stands, though, I think an apology would be sufficient.