Free speech – Page 8 – Media Nation

Presenting the 14th annual Phoenix Muzzle Awards

The 14th annual Boston Phoenix (and Portland Phoenix and Providence Phoenix) Muzzle Awards are now online and in print, pillorying New England enemies of free speech in Greater Boston, Maine and Rhode Island, from Max Kennedy to Tom Menino. But we begin with some tough words about President Obama.

My friend Harvey Silverglate has written a companion piece on free speech on college campuses.

Sadly, since I first began writing this Fourth of July feature in 1998, finding suitable recipients has only gotten easier.

Norfolk DA seeks to close a window at OpenCourt

OpenCourt, an ambitious project affiliated with WBUR Radio (90.9 FM) that’s designed to shine some sunlight on court proceedings, has been dealt a setback at the hands of Norfolk County District Attorney Michael Morrissey.

Last week OpenCourt began webcasting a livestream from Quincy District Court. But several days into the experiment, Morrissey asked that archives of the video stream be closed to the public. A motion (pdf) filed by his office claims that “the privacy and safety of victims and witnesses could be seriously compromised,” especially in cases involving gang violence. The motion cites the possibility that the jury pool could be tainted as well.

The OpenCourt blog responds:

The letter and the motions came as a great surprise to us, since we have for the past four months met with all stakeholders of the court, including the District Attorney, to ensure we implement this groundbreaking pilot project responsibly and respectfully.

While we will continue to record sessions, we have voluntarily decided to suspend posting the archives until sometime after May 18, 2011, as we try to work out a practical solution to the concerns raised by the District Attorney.

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.

“It’s a pilot,” Davidow recently told Justin Ellis of the Nieman Journalism Lab. “It’s now a reality and off the white board. More and more issues will come forward.”

What makes this sticky is that OpenCourt has no First Amendment right to archive its video, or even to livestream. The project is entirely dependent on the goodwill of court officials. Yet the traditional closed-door mentality of our justice system helps foster suspicion and cynicism — exactly the negative attitudes that Davidow and company are trying to break down by making it easy for us to see exactly what takes place.

Let’s hope Morrissey thinks better of his knee-jerk reaction to openness and gives OpenCourt the room it needs to keep moving forward.

Note: OpenCourt’s struggle with Morrissey is also being tracked by the New England First Amendment Center at Northeastern University, to whose blog I occasionally contribute.

In Massachusetts, silence is literally golden

When state officials pay someone to go away, they often pay for that person’s silence, too. That’s what Boston Globe reporter Todd Wallack found in a review of “more than 150 large severance and settlement agreements signed by state agencies since 2005.”

More than half contained either a confidentialty or non-disparagement clause, and one in five contained both, Wallack reported in Sunday’s Globe. And the practice persists even though Attorney General Martha Coakley has ruled such clauses are illegal in most cases.

Wallack’s findings point to an unfortunate reality: Gov. Deval Patrick, despite his reformist credentials, is no more a fan of open government than his predecessors regarding information that could make him or his agency heads look bad.

As Wallack notes, it was a big deal when then-state treasurer Tim Cahill’s use of confidentiality agreements was exposed a few years ago. Now it turns out that the practice is far more widespread than anyone knew at the time.

Consider this story in context. In 2008, Colman Herman reported for CommonWealth Magazine that the public-records law was a shambles, and that Patrick — like his predecessors — had made it be known that he considered many of the executive branch’s actions to be exempt from the law, a questionable proposition. (Note: I have contributed articles to CommonWealth, and my Northeastern colleague Walter Robinson is quoted in Herman’s story.)

Patrick was portrayed as having turned over records voluntarily despite his contention that he didn’t have to. But for advocates of open government, it’s clear that what’s needed in Massachusetts is root-and-branch reform. Anyone want to guess at the chances of that happening?

Update: Herman reports on some recent efforts to strengthen the law in a post for the New England First Amendment Center, but makes it clear that we’re a long way from true transparency.

Photo (cc) by Scott LaPierre via Wikimedia Commons. Some rights reserved.

In Wisconsin, a FOIA request too far

As a journalist, my inclination is to support public-records laws that guarantee maximum disclosure. As an ordinary citizen, it’s sometimes unclear to me exactly how far those laws ought to go.

You may have heard that Wisconsin Republicans have filed a Freedom of Information Act request to obtain private emails written by or to a history professor named William Cronon, whose blog has become a focal point in the battle over the rights of public-employee unions in that state.

Cronon may have to comply because he teaches at the University of Wisconsin in Madison, a state university and thus subject to Wisconsin’s strict public-records laws.

One strong argument against disclosure — and one invoked by Cronon himself — is the principle of academic freedom. That may well be how Cronon beats this, yet it strikes me as an easy way out. Why should a professor be exempt while, say, a $50,000-a-year career employee in the highway department is subject to having his private emails revealed in response to a FOIA request?

I should note that this does not affect me personally. Northeastern is a private university. But I don’t see why I should be safe from the long arm of FOIA while my colleagues at UMass are not.

Like Paul Krugman, I make some attempt to use my work email address for professional business and my personal address for everything else. But it’s mainly for my organizational benefit, and I’m not all that painstaking about keeping the two accounts separate.

I’m not sure what the answer is. It seems to me that some officials higher up the food chain ought to be subject to FOIA laws, but that ordinary employees should not. Of course, such officials’ correspondence with ordinary employees would be covered. But I shouldn’t be able to FOIA the email of anyone just because he or she happens to draw a government paycheck.

Censors at Apple asked to censor

Unfortunately for Apple, it has forfeited its right to assert free-speech protection because of the censorious manner in which it has run its iTunes Store. So when a group of gay activists demands that Apple remove an app claiming it can “cure” people of homosexuality, what can we do except agree?

The day Apple stops discriminating against certain types of content is the day I come to the company’s defense.

Police officer vows to defy First Amendment

Last fall, the New Haven Police Department came under criticism after officers were caught harassing people trying to video-record them while they were making arrests during a crackdown on rowdy bars. In one instance, according to an internal report, a commanding officer went so far as to confiscate an iPhone and order another officer to erase the video.

Police Chief Frank Limon, in response, said publicly that citizens have a right to video-record the police as long as they don’t interfere. Officers are attending training sessions reinforcing that message. And Limon recently issued a general order putting it into writing.

So what do you do when an officer — posting pseudonymously in the comments section of the New Haven Independent, a five-year-old non-profit news site — makes it clear that he’s going to keep doing things his way?

It’s an interesting question, and one with no easy answer.

On March 3, Independent editor and publisher Paul Bass covered a training session led by Assistant Chief Tobin Hensgen. Nineteen of the department’s more than 400 officers were there. Presumably all of them will be cycled through at some point.

As it happened, I was on one of my reporting trips to New Haven, so I was there. Among other things, I got to see another dimension to the controversy: Hensgen showed a video clip of a handgun convincingly disguised as a cellphone. I can certainly understand why an officer would want to inspect a cellphone if someone were aiming it at him at a crime scene.

Coincidentally, later that afternoon Chief Limon held a news conference at police headquarters to respond to two investigations into incidents of police harassing cellphone-wielding bystanders. (I was on hand for that as well, tagging along with reporter Thomas MacMillan.) Former assistant chief Ariel Melendez was at the center of both incidents. He retired in January with a pension of $124,500.

On Saturday, a commenter who identified himself only as “J” (scroll down) wrote that he was at the training session, and that he would insist on inspecting a cellphone at the scene because of the possibility that it could be a weapon. So far, so good. Then he added this:

Also if I am conducting an investigation involving a juvenile and I find that you are filming I will ask you to stop. If you do not comply I will take your phone and place it into evidence. The identity and image of a juvenile will be protected. Of course if you see a officer abusing a juvenile or anyone for that matter and film it this is a different story.

Bass responded in an “Editor’s Note”:

I believe you will be breaking the law in that latter case. If you do that to us, we will pursue all legal avenues to make sure you are punished. However, I agree with you that we shouldn’t film the juvenile; that is our responsibility. However again, we do feel comfortable filming the scene but leaving the juvenile’s face and identity out of it.

“J” posted again, making it clear that he understood the law, but was going to do what he thought was right regardless:

No, if I am dealing with a juvenile while conducting an investigation then the entire well-being of that child is MY responsibility, not the individual who is filming.

I completely understand that you or anyone would pursue me or any other officer legally, unfortunately that comes with this job.

If I am to be pursued legally my report will show my justification for what I have done and I will have to play the odds. I can say that anything regarding a child plays heavily on the feelings of all adults, so I would find it extremely hard for any court to find fault in what I did. I, however will sleep well knowing I did the right thing legally or not.

I guess we will agree to disagree.

Bass:

We are not disagreeing about what the law says. We are not disagreeing about what the policy is. We are disagreeing about whether you should follow the law; that’s your choice. In terms of protecting the juvenile — in the case of the Independent, we agree not to run the face of a juvenile being arrested. If another citizen or media outlet chooses to run a photo of juvenile in public causing trouble, the law is 100 percent clear that this is legal and permissible and that you are breaking the law if you try to prevent it.

There’s more, but that’s the gist of it. What’s at the heart of this dispute is a little-understood fact: that news organizations protect the identities of juveniles by custom, not as a matter of law. No one is legally prohibited from publishing the name of a juvenile charged with a crime — and, in fact, names often are published if the crime is notorious enough.

Nor do juvenile victims and witnesses enjoy any legal protections against having their identities revealed. Protecting their identities is a custom, and a good one. But making it a matter of law would violate the First Amendment’s guarantee of free speech and freedom of the press. The Supreme Court has on several occasions struck down laws that attempt to codify that custom.

What’s interesting about “J” is that he seems to be well aware of that, but doesn’t care. In part, he may be reacting to a legitimate concern about citizen journalism: though a news organization like the Independent isn’t going to publish the names of juveniles, there’s nothing to stop someone with a cellphone camera from posting a video to YouTube that clearly identifies underage suspects, victims and witnesses.

Under the Constitution, though, they have every right to do that. As the saying goes, “What part of ‘no law’ don’t you understand?”

Kennedy hypocrisy harms the public interest

Central to the idea of censorship is that it’s an action taken by the government. But it appears that the Kennedy family may have come up with a new form of censorship: suppression of government documents by a private person.

Boston Globe reporter Bryan Bender writes that Max Kennedy, one of Robert Kennedy’s children, has barred full access to his father’s papers dating back to his time as attorney general. Historians tell Bender those documents could prove embarrassing given what they might reveal about RFK’s actions with regard to Cuba and civil rights.

For censorship aficionados, Max Kennedy’s e-mail to Bender is a classic:

There are many requests to see them, and frankly, many of those requests come from people with poorly-conceived projects. It is my responsibility, as custodian of the papers, to grant use responsibly. That does not mean that every book must be cloyingly positive; I do not think that for a moment, and I would be doing a disservice to my father if I acted that way. But 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.

In other words, freedom of information is too precious to grant it to just anyone. What a repulsive example of hypocrisy.

Those papers were created at public expense and belong to us. It’s been 50 years. I’m not sure why Max Kennedy even has a say in the matter. But since he does, it’s long since time for him to put the public interest above the possibility that his father’s legacy will be tarnished.

Update: Martin Callaghan points out that Bender does not explain why the Kennedy family rather than the government gets to decide who has access and who doesn’t. The story demands follow-up, and I hope that explanation is forthcoming.

Photo via Wikimedia Commons.

Trampling on the rights of parents

Swampscott school officials are a disgrace. Check out this Salem News story about a meeting on drug and alcohol abuse that parents of high-school students were forced to attend — the penalty for non-compliance being that their kids would be banned from sports and after-school clubs.

Once the parents got there, they were told they could not speak. According to the News, one parent was informed he could keep his mouth shut or face arrest. The media were barred as well, though school officials were unable to stop News reporter Ethan Forman from attending, since he’s the father of a Swampscott High School student. Yet even that didn’t stop a police officer from reportedly trying to kick him out.

According to today’s News, principal Layne Millington “is hoping to hold a second gathering with parents.” No word on whether Millington plans to organize a posse in order to round up parents to make sure they attend. In an editorial, the News rightly calls the meeting “an exercise in authoritarianism and censorship.”

The Swampscott Reporter, which was unable to get a reporter inside, editorializes that school officials’ thuggish tactics (my phrase, I should be careful to point out) “have given Swampscott a black eye.” (Here’s the story the Reporter posted in advance of the meeting.)

And why did Essex County District Attorney Jonathan Blodgett address the parents? Back when district attorneys, rather than the attorney general, enforced the state’s open-meeting law, Blodgett’s office was always responsive about complaints and tough on public officials who violated the law. Once Blodgett saw what was up in Swampscott, he should have refused to participate. Maybe he didn’t realize the media had been banned.

This was an enormous mistake. Swampscott school officials should apologize for their shameful actions.

The stunningly appropriate photo is taken from the Swampscott High School website.

Net neutrality and the politics of pizza

Imagine living in a world in which Domino’s could pay your phone company to make it impossible for you to call other pizza joints. That can’t happen because, legally, phone services are considered “common carriers,” which must accept all traffic in a non-discriminatory manner. Which is what the battle over net neutrality is all about.

This week the FCC’s three Democrats backed a too-weak proposal to ensure net neutrality that the Republicans vowed to oppose anyway. I don’t pretend to understand all the technical arcana, but, according to news reports like this one, net neutrality will be more or less assured on wired broadband networks such as cable and FIOS, while the market will have its way on wireless networks.

Which network do you suppose will be more important in 10 years — or two, for that matter? Wired or wireless?

Take a look at this post on Engadget, which obtained an actual proposal for wireless broadband providers to charge extra for access to Facebook, Skype and YouTube. It’s a variation on a theme that Sen. Al Franken sounded in a must-read essay. Franken points out that, without net neutrality, Verizon could block Google Maps and charge you extra to use its own inferior mapping service. Franken writes:

Imagine if big corporations with their own agenda could decide who wins or loses online. The Internet as we know it would cease to exist. That’s why net neutrality is the most important free speech issue of our time.

Back when the debate was over media concentration, old-school conservative organizations like the National Rifle Association and the Christian Coalition made common cause with liberal groups to stop the FCC from making a bad situation worse. Unfortunately, the newly ascendant Tea Party right is so hostile to government activism that it opposes efforts to ensure net neutrality.

This week’s action by the FCC was not definitive. Net neutrality is an issue that we’ll be revisiting again and again in the years ahead. But given President Obama’s stated support for neutrality, this may be as good as it gets. And it’s not very good.

To learn more, and to take action, visit Free Press.

A First Amendment hero-in-the-making

Last night I met a fledgling First Amendment hero: Michael Morisy, co-founder of MuckRock, a site where he posts public documents he obtains from filing public-records requests.

Morisy, as you might have heard, may be in trouble because of how Gov. Deval Patrick’s administration handled his request for records about how much money has been spent at various Massachusetts businesses under the federal food-stamp program.

The state complied with Morisy’s request. Then, in a classic CYA move, the administration — realizing after the fact that the release may have violated federal law — sent a letter to Morisy informing him he could be subject to a possible fine or imprisonment if he doesn’t take the information down. It was a ridiculous threat, and Morisy has refused to comply. The courts have consistently ruled that, under the First Amendment, the onus for keeping private records private is entirely on the keeper of those records, not on those who would publish them.

Nor is the privacy of any food-stamp recipients at risk. The records published by MuckRock, according to this Boston Globe story by Noah Bierman, do not identify any recipients.

It doesn’t seem likely that Morisy and his tech guy, Mitchell Kotler, are in any real trouble. In a follow-up in the Globe by Jonathan Saltzman, we learn that the Patrick administration issued a second CYA to cover its first CYA, assuring one and all that it never, ever intended to threaten MuckRock. Oh, no, of course not.

“At this point, I think the legal issue will blow over,” Morisy tells Chris Faraone of the Boston Phoenix. “But it’s still interesting, because all of a sudden people got very interested in what we’re doing.”

Still, you never know. Last night Morisy attended a panel discussion I moderated at Boston University on “Legal Liability in the Age of WikiLeaks,” with local First Amendment lawyers Jon Albano and Rob Bertsche. Bertsche, who has agreed to represent Morisy for free, made it clear that he doesn’t consider MuckRock to be out of the woods just yet.

Given the public attention this issue has received, I think Gov. Deval Patrick himself should announce that Morisy and Kotler are in no danger for posting records they received as a result of making a legitimate public-records request. Patrick should apologize while he’s at it.

Photo is from Morisy’s LinkedIn profile.