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.
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.
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 Forbesrevealed 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 Fortuneadded 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.
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.
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.
Among the New England Muzzle Award recipients I recognized last month at WGBHNews.org were Massachusetts Attorney General Maura Healey, for backing a ridiculous 70-year-old state law that banned political lying, and New Hampshire State Rep. Timothy Horrigan, a leader in the effort to outlaw the scourge of so-called ballot selfies.
This month, the courts agreed on both fronts.
According to Zack Huffman of Courthouse News Service, the Massachusetts Supreme Judicial Court struck down the anti-lying statute, with Justice Robert Cordy writing:
We conclude that [the statute] cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system.
It is now safe for the presidential candidates to campaign in Massachusetts.
In New Hampshire, U.S. District Judge Paul Barbadoro ruled that the ban on posting photos of a marked ballot could not be justified even though it was supposedly designed to eliminate bribery, with the selfie providing the proof needed that the person taking the bribe had voted as instructed.
The problem, Barbadoro noted, was that such fraud had not actually taken place in at least the past 100 years. In addition, Barbadoro ruled that the law “deprives voters of one of their most powerful means of letting the world know how they voted,” according to an account of the decision by Jeremy Blackman of the Concord Monitor.
The moral of these stories: Do not mess with the Muzzles.
From fast-food chicken chain Chick-fil-A to Massachusetts Attorney General Maura Healey, everyone, it seems, has got a problem with free speech.
Please have a look at the 18th edition of the New England Muzzle Awards — launched in 1998 at the late, great Boston Phoenix and now hosted exclusively by WGBHNews.org. The Campus Muzzles, as always, are helmed by civil-liberties lawyer Harvey Silverglate.