Category: Free speech

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

  • A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
  • A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.

Making sense of that journalists-aren’t-bloggers ruling

In my latest for the Huffington Post, I take a look at that bloggers-aren’t-journalists ruling in Oregon. And I argue that the case has nothing to do with the shield law, and everything to do with the dangerous cultural schism between journalists and the rest of society — and a judge who wants to widen it.

A new threat to online freedom of speech

Congress is coming after your Internet. Two proposals wafting their way through the House and the Senate would destroy the Internet as we know it, forcing some websites to shut down and others never to launch in order to avoid onerous penalties for copyright infringement.

As Dan Gillmor explains in the Guardian, the bills — known in the Senate as the Protect IP Act and in the House as the Stop Online Piracy Act — would end what is known as the “safe harbor” law. That law holds an Internet service harmless for hosting infringing material posted by a third party as long as it removes that material as soon as it receives notice from the copyright-holder.

Gillmor observes that YouTube never could have gotten off the ground if such a regime had been in effect at the time of its launching. “Congress is making common cause with a corporate cartel that wants to turn the Internet into little more than an enhanced form of cable television,” he writes.

According to Rebecca MacKinnon, writing in the New York Times, the proposals would set up blacklists to be administered by the U.S. attorney general, so that if a site were found to have infringed on copyright, it would essentially become invisible to anyone trying to find it. She compares the effect of the proposed law to the online censorship system that China uses, except that this one would be designed to protect the corporate interests of media companies rather than a government. MacKinnon argues that skittish businesses are already too eager to comply with takedown notices, and writes that the bills, if passed, could be used to suppress political debate:

Abuses under existing American law serve as troubling predictors for the kinds of abuse by private actors that the House bill would make possible. Take, for example, the cease-and-desist letters that Diebold, a maker of voting machines, sent in 2003, demanding that Internet service providers shut down Web sites that had published internal company e-mails about problems with the company’s voting machines. The letter cited copyright violations, and most of the service providers took down the content without question, despite the strong case to be made that the material was speech protected under the First Amendment.

Yesterday was American Censorship Day (sorry! I missed it!), and a number of sites blocked themselves to dramatize the effect of the proposals, according to the media-reform group Free Press.

Fortunately, David Kravets reports for Wired.com that a chief sponsor of the House bill, Rep. Lamar Smith, R-Texas, seemed to be having second thoughts during a three-and-a-half-hour hearing on Wednesday. But even a compromise could endanger the right to free speech if it empowers the government to act against individuals on behalf of corporations.

And let’s hear a shoutout for U.S. Rep. Ron Paul, R-Texas, a Republican presidential candidate who, as Gillmor notes, has come out against the House bill. I don’t believe the Obama administration has said a word. Sad to say, it doesn’t sound like the sort of thing this president would veto.

As a journalist, I rarely sign petitions. But I’m signing this as soon as I’m done writing, and I urge you to do so as well. The First Amendment is not a partisan cause.

Big Brother poster via Wikimedia Commons.

Talking up terrorism and the right to free speech

It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.

Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.

So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.

Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.

In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.

To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”

I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.

First Amendment rights and wrongs

In an effort to respect the First Amendment‘s guarantee of freedom of religion, the Upton selectmen have given short shrift to another provision of the First Amendment: “the right of the people peaceably to assemble.”

According to Jessica Heslam of the Boston Herald, the selectmen recently voted to reject a request by local Catholics to hold a “rosary rally” on the town common, citing the separation of church and state.

But as noted civil-liberties lawyer and Friend of Media Nation Harvey Silverglate tells Heslam, there is no constitutional problem with allowing a prayer rally on public property as long as other groups are accorded the same right of access. Another civil-liberties lawyer, Chester Darling, goes further, saying, “Those selectmen belong in federal court.”

Prediction: The selectmen are going to change their minds.

Update, Oct. 28: Well, that was fast.

Globe warns Occupy Boston on trademark

The Boston Globe is trying to stop the Occupy Boston demonstrators from using the paper’s name in its own publication, according to Metro Boston reporter Steve Annear. The protesters are planning to start a paper called the Occupy Boston Globe, similar to the Occupied Wall Street Journal in New York. (David Carr of the New York Times wrote about that last week.)

“We do not condone the use of our trademark-protected name and logo by any organization,” Globe spokesman Bob Powers is quoted as telling Annear.

Surely, though, the Globe’s lawyers know the Occupy Boston folks are within their legal rights. The Globe’s trademark prevents a would-be competitor from coming in and starting a newspaper called the Boston Globe. By contrast, the name “Occupy Boston Globe” is a parody of and a commentary on the Globe and on the media in general, expression that is protected by the First Amendment. A major consideration in trademark cases is whether readers might confuse the parody with the original. There doesn’t seem to be much chance of that.

Writing at BostInnovation, Lisa DeCanio reports that Occupy Boston Globe is trying to raise $8,000 to launch a daily and a full-color weekly, the latter of which would be published in English and Spanish. There’s already an online version of the paper, which in turn makes reference to a print edition. So maybe the presses have started to roll.

(Thanks to Greg Reibman, whose tweet alerted me to the Metro Boston story.)

Intimidation, free speech and Barstool Sports

Martha Coakley

(Note: This item has been corrected. See below.) If Attorney General Martha Coakley thinks David Portnoy broke the law, then she should charge him. If not, then she should leave him alone. What she shouldn’t do is send state troopers to his house to intimidate him into removing nude photos of Tom Brady’s 2-year-old son from his sleazy website, Barstool Sports.

A number of legal experts, including Coakley herself, have concluded that Portnoy did not violate child-pornography laws because there was no “lascivious intent,” according to the Boston Globe. Indeed, Portnoy’s crude commentary about the size of the boy’s genitals may actually have helped him, since he demonstrated that he is a moron rather than a pervert.

But Coakley, having come to the conclusion that Portnoy broke no law, had no business dispatching police officers to his home to tell him what content was appropriate and inappropriate for his website. Portnoy said the officers were polite, but as First Amendment lawyer Jonathan Albano tells the Globe, “There’s an inherent element of coercion when civilians are faced with police in uniforms.” I’m glad Portnoy finally removed the photos, but the principle is that law-enforcement officials shouldn’t tell people that it would be a good idea if they stopped engaging in legally permissible conduct.

That’s not to say Portnoy didn’t show incredibly poor judgment. The Boston Herald reports that — yes — Howard Stern is among those taking Portnoy to task, telling him during an appearance on his radio show, “I have three daughters and I gotta tell you, Dave, I would never post a picture of a child and comment on their genitals, and I’m known for outrageous commentary.”

There would have been no free-speech issue if, instead of state troopers, Portnoy had opened his door and found Tom Brady and a couple of Patriots linemen standing on his front porch. It would have been a lot more satisfying, too.

Correction: It has come to my attention that I misunderstood the timeline. At the time that state troopers visited Portnoy’s house, Coakley’s office was still investigating, and had not yet decided whether to bring criminal charges against him. The troopers did ask that Portnoy remove the photos, and he voluntarily did so. It was only after that that Coakley decided no crime had been committed.

Photo (cc) 2009 by Dan Kennedy. Some rights reserved.

Norfolk DA, OpenCourt battle over video archives

John Davidow

A suspect’s lawyer blurts out the name of a 15-year-old girl whom prosecutors say was forced into prostitution. Several newspaper reporters hear the name. Even though they have the right to use it under the First Amendment, it’s understood that they won’t — it would be unethical journalistically, it would compromise the criminal case and it would traumatize the alleged victim.

Despite all that, the district attorney’s office goes to court to prevent a news organization’s video from being posted online, even though the folks who run that organization say they have no intention of uploading it until the identifying information has been removed.

In essence, that’s how OpenCourt characterizes a lawsuit brought by Norfolk District Attorney Michael Morrissey, which will be heard before Supreme Judicial Court Justice Margaret Botsford later today. The Boston Globe reports on the suit here; WBUR Radio (90.9 FM), with which OpenCourt is affiliated, reports on it here; and Open Court has its own take, with lots of background material, here.

Headed by WBUR’s executive editor for new media, John Davidow, OpenCourt received a $250,000 Knight News Challenge grant to livestream court proceedings and to make it easier for journalists, both professional and citizen, to provide coverage via Twitter and live-blogging. OpenCourt began livestreaming from Quincy District Court in May.

The issue of archiving those videos has proved to be contentious, with Morrissey’s office arguing that the archives — including the one involving the 15-year-old — could compromise “the privacy and safety of victims and witnesses.” Davidow responds that OpenCourt would be guided by the same ethical guidelines as any news organization, and that a legally imposed ban would be an unconstitutional abridgement of free speech. Davidow tells the Globe’s John Ellement:

This is really taking reporting that is done every day and then trying to take the editorial aspects away from journalists and put them in the hands of the state to decide what is published and what is not…. [O]nce we lawfully covered a story that was published, then it is up to the news organization to decide what to do with that material.

What Morrissey’s office is trying to do is to take long-established customs recognized by journalists and law-enforcement authorities alike and codify those customs into law, even though there is no reason to believe OpenCourt would act less responsibly than, say, the Quincy Patriot Ledger. It would set a dangerous precedent, and I hope the SJC does what is clearly the right thing.

The Globe, the Times and RFK’s papers

Robert Kennedy

There’s been a pretty interesting development in the battle over Robert Kennedy’s papers. The New York Times reports that members of Kennedy’s family are unhappy with the John F. Kennedy Library in Boston, and may move the papers to George Washington University.

The story also says the family decided on March 1 to release 63 boxes of papers, some of them “dealing with Cuba, Vietnam and civil rights, [that] are classified as secret or top secret.”

These would appear to be the “54 crates of records” that the Boston Globe revealed last January were being withheld from all but a few favored historians. At that time, Robert Kennedy’s son Max placed his foot firmly in his mouth, telling the Globe’s Bryan Bender that he’s all for openness except in those cases when he’s not.

“I do believe that historians and journalists must do their homework, and observe the correct procedures for seeking permission to consult the papers, and explain their projects,” Max Kennedy was quoted as saying. Max’s boffo performance led me to bestow a Boston Phoenix Muzzle Award upon him recently.

In the Times story, there is no mention of Max. Instead, another of Robert Kennedy’s sons, former congressman Joe Kennedy, emerges as the family spokesman, and he comes off as considerably more diplomatic than his younger brother.

A search of the Globe and Times archives shows that the family’s March 1 decision to release the papers was not reported prior to today’s Times story. That suggests a deliberate strategy of working hand in hand with Adam Clymer, the retired Times reporter who gets the lead byline today. Clymer, you may recall, is the author of “Edward M. Kennedy: A Biography,” a respected though admiring treatment of the late senator published in 2000.

All in all, fodder for a follow-up by Bender.

Library of Congress photo via Wikimedia Commons.