New England Muzzles – Media Nation

A Muzzle Award to Mass. POST for spurning data needed to track police misconduct

Photo (cc) 2015 by Tom Woodward. Digitally edited to remove license plate number.

In 2020, Massachusetts took what was billed as a major step forward in holding police officers accountable. Following the police murder of George Floyd in Minneapolis, the state created the Massachusetts Peace Officer Standards and Training (POST) Commission “to improve policing and enhance public confidence in law enforcement by implementing a fair process for mandatory certification, discipline, and training for all peace officers in the Commonwealth.”

But according to an investigation by the Boston Institute for Nonprofit Journalism, the POST Commission has not collected the employment data it needs to do its job. The story, by BINJ editorial director Chris Faraone and Sam Stecklow, an investigative journalist currently on a fellowship with the Pulitzer Prize-winning Invisible Institute of Chicago, found that Mass. POST and its director, Enrique Zuniga, made a series of decisions that experts say undermine the agency’s mission. Faraone and Stecklow write:

Despite passing regulations that instruct it otherwise, POST’s database does not include the full employment history of all of the officers that are going through the state’s recertification process — only for officers who have had discipline sustained against them. This prevents the press and public from analyzing data about what are often known as “wandering cops,” who transfer between departments after committing misconduct.

Employment history data are basic information that 27 other states around the country, including Vermont, have released to a national reporting project.

“It doesn’t make any sense that the previous employment of these officers wouldn’t be tracked and recorded if the ultimate goal was to prevent police misconduct from occurring,” Justin Silverman, executive director of the New England First Amendment Coalition,” is quoted as saying. “We’re only getting half the story without this information.”

Over the course of 3,500 words, Faraone and Stecklow go into great detail in explaining what data are missing and what the implications might be. As for the POST Commission, it has earned a New England Muzzle Award for only partially lifting the veil of secrecy that protects police officers who’ve been accused of misconduct.

The story, by the way, is the product of a partnership between BINJ and the Invisible Institute that Faraone explains here. Their investigation is being published not just by BINJ’s HorizonMass affiliate but also by The Shoestring in Western Massachusetts, Luke O’Neil’s Welcome to Hell World newsletter, and about a half-dozen hyperlocal weeklies and other publications.

And lest we overlook the mutual backscratching opportunities here, I’ve interviewed BINJ and HorizonMass co-founder Jason Pramas on “What Works,” our podcast about the future of local news, while Faraone and Stecklow give a shoutout to the Muzzle Awards in their article.

Muzzle Award follow-up: MIT denounces the antisemitic Mapping Project

MIT campus. Photo (cc) 2009 by Wagner T. Cassimiro “Aranha”

The Mapping Project, an anti-Israel effort that singles out Jewish organizations, is back in the news — this time for publishing a flier, headlined “Welcome to MIT!,” listing “hundreds of institutions in the Boston area such as synagogues, museums, businesses, and police departments,” according to Janet Lorin of Bloomberg News.

MIT president Sally Kornbluth has denounced the Mapping Project for antisemitism, saying in a statement: “Like every other form of racial and religious prejudice and hate, antisemitism is totally unacceptable in our community. It cannot be justified, and it is antithetical to MIT’s values.” Lorin quotes from the flier: “Our goal in pursuing this collective mapping was to reveal the local entities and networks that enact devastation, so we can dismantle them.”

The Bloomberg article was republished by The Boston Globe, which so far does not appear to have covered the story itself. In case you don’t have a subscription to either Bloomberg or the Globe, here’s a free link to a story in The Jerusalem Post by Michael Starr.

In 2022, I gave the Mapping Project a New England Muzzle Award, then in its final year of being hosted by GBH News. Here is the item in full, published June 29, 2022:

The BDS Mapping Project

An anonymous group created a website to intimidate, harass and silence supporters of Israel.

U.S. Rep. Jake Auchincloss earlier this month called out a chilling example of intimidation and harassment: the Mapping Project, which identified Jewish and pro-Israel organizations on a map of Massachusetts. The map’s makers have remained anonymous, but the website has been promoted by members of the Boycott, Divestment and Sanctions movement, which seeks to name and shame supporters of Israel because of that country’s continued occupation of land claimed by the Palestinians.

The map, Auchincloss tweeted, is “tapping into millennia-old antisemitic tropes. To name names & keep lists, which has a sinister resonance to the targeting of Jews throughout history, is irresponsible. They need to take down the map and apologize.” Auchincloss is a Newton Democrat who is also Jewish.

The Muzzle goes to the BDS Mapping Project, whoever its members may be. Their foul activism is designed to frighten and silence supporters of Israel rather than allow for open discussion and debate.

The existence of the Mapping Project was reported by a website called Jewish Insider, which noted that its organizers explained their hateful project by writing: “Our goal in pursuing this collective mapping was to reveal the local entities and networks that enact devastation, so we can dismantle them.” The map includes colleges and universities, medical institutions, financial groups, police departments and numerous other agencies.

The action comes at a time of skyrocketing incidents of antisemitism, according to the Anti-Defamation League — which, naturally, occupies a prominent place on the map. In 2021, the ADL found that reports of assaults, harassment and vandalism against Jews were up 42% in New England compared to 34% nationally. Moreover, 108 of the 155 incidents in New England occurred in Massachusetts.

As ADL regional director Robert Trestan wrote in The Boston Globe:“Whatever one’s views on Israeli policy and actions — and we recognize that opinions vary widely — this should be an occasion for all to stand up against this kind of intimidation and targeting.”

A Muzzle to Waltham’s local access outlet for trying to silence citizen journalists

According to its “About” page, Waltham Community Access Corp., which operates two local access stations for the benefit of cable subscribers, “is funded by a percentage of the gross revenues from Comcast and RCN cable.” This is a typical arrangement, mandated by state law. And though WCAC describes itself as an “independent nonprofit corporation,” the revenues that access channels receive from cable providers are generally passed through to them by local government. What’s more, the cable providers themselves are licensed by each city and town.

In other words, local access outlets like WCAC may not be part of the government, but they certainly have a relationship with the government. Which is why the actions taken by WCAC last September, just before a city election, were especially pernicious. According to a lawsuit filed last week in U.S. District Court by a citizen journalism group known as Channel 781 News, WCAC filed a complaint with YouTube claiming copyright infringement because Channel 781 had made use of clips of government meetings. Again, as is typical of local access operations, WCAC carries some municipal meetings in full and then posts them online. According to a press release from the Electronic Frontier Foundation, which filed the suit on Channel 781’s behalf, WCAC violated Channel 781’s rights under the “fair use” exception to copyright law:

The Waltham Community Access Corp.’s misrepresentation of copyright claims under the Digital Millennium Copyright Act (DMCA) led YouTube to temporarily deactivate Channel 781, making its work disappear from the internet last September just five days before an important municipal election, the suit says.

“WCAC knew it had no right to stop people from using video recordings of public meetings, but asked YouTube to shut us down anyway,” Channel 781 cofounder Josh Kastorf said. “Democracy relies on an informed public, and there must be consequences for anyone who abuses the DMCA to silence journalists and cut off people’s access to government.”

WCAC’s actions — which have earned it a New England Muzzle Award — resulted in the temporary shutdown of Channel 781, according to a story from last September in The Justice, the student newspaper at Brandeis University. At that time, Justice reporter Lea Zaharoni wrote that WCAC did not respond to a request for comment. But Zaharoni found that the president of WCAC’s board also served as a city official, and observed that Channel 781 had reported critically on yet another organization that particular official was involved with.

Adam Gaffin of Universal Hub, who has published a comprehensive account of the lawsuit, found a statement posted by WCAC executive director Maria Sheehan that has since been taken down:

Our station is a private nonprofit that does not receive taxpayer funding. Over recent years, photographs from our news department, and video from the MAC channel, have been reproduced without our permission. We know this is a reality of the world we live in, but we put copyright disclaimers on our media for a reason. Some have used our content to score political points under the veil of anonymity. Others have used it to encourage residents to hate. This practice can damage reputations and spread misinformation and we do not want to be a part of that. So as we head into a contentious election season, I’m asking the public to respect people who work hard to create our original content. In the interest of transparency, we will entertain requests to reuse our content for free, but misuse is wrong, and it is illegal. Moving forward, the Waltham Channel will take whatever legal steps necessary to protect our content.

According to the EFF, “WCAC sent three copyright infringement notices to YouTube referencing 15 specific Channel 781 videos, leading YouTube to deactivate the account and render all of its content inaccessible. YouTube didn’t restore access to the videos until two months later, after a lengthy intervention by EFF.”

In its lawsuit, the EFF asks that the court issue an order to prevent WCAC from targeting Channel 781. Damages and attorney’s fees are being sought as well.

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The return of a Fourth of July tradition: The annual New England Muzzle Awards

A “disgruntled homophobic Middle School janitor.” The Massachusetts legislature, which has resolutely refused to strengthen our notoriously weak public records law. A Rhode Island city councilor who threw a critic out of a public meeting. A Malden charter school that refused to turn over public records on the patently absurd grounds that it’s not a public school.

These are just a few of the people and institutions that I’ve singled out over the past year as recipients of the New England Muzzle Awards, my annual Fourth of July round-up of transgressions against freedom of expression.

From 1998 to 2012, I wrote these up for the late, much lamented Boston Phoenix. Then, from 2013 to 2022, the Muzzles were hosted by GBH News. I decided to call it a wrap with the 25th-anniversary edition. But then I began to write up Muzzles as they came to my attention rather than saving them all for Independence Day. What follows are Muzzle Awards I’ve handed out since last June.

Kudos, as always, to my friends Harvey Silverglate, who conceived of this annual feature all these years ago, and Peter Kadzis, who edited all 25 editions. They were inspired by the Jefferson Muzzles, which no longer are awarded. Here in New England, though, their spirit lives on.

At a time when democracy itself is under threat, defending the First Amendment is more important than it’s ever been. The envelopes, please.

How our weak public records law is enabling a cover-up of school sports harassment (June 20, 2023)

The Mystic Valley Charter School, winner of a 2017 Muzzle, is back to its old tricks (Aug. 1, 2023)

A Muzzle Award goes to an R.I. city councilor who threw a critic out of the chambers (Aug. 7, 2023)

A NH publisher faces sentencing, while a small town in Mass. says no to drag (Dec. 13, 2023)

A Muzzle for the officers who removed a teenage journalist from a GOP event (Oct. 16, 2023)

In Marblehead and Waltham, teachers and officials seek to stifle public scrutiny (Nov. 8, 2023)

A Muzzle Award for the anonymous troll who reported ‘Gender Queer’ to the police (Dec. 21, 2023)

NH newspaper publisher fined $620 for running unlabeled political ads (Dec. 22, 2023)

AG Campbell boosts free speech for electeds, while an anti-trans shirt goes to court (Feb. 14, 2024)

A Muzzle to a CT police department that kept a murder probe under wraps (March 17, 2024)

Muzzle follow-up: North Brookfield will allow drag show at Pride event (March 20, 2024)

How our shameful public records law is affecting the Karen Read murder trial (April 29, 2024)

Great Barrington teacher sues town, school district and police over classroom search (May 17, 2024)

Plymouth official threatens reporter for recording a public, live-streamed meeting (June 20, 2024)

A Vermont state trooper, a middle finger — and, voilà, a New England Muzzle Award (July 1, 2024)

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A Vermont state trooper, a middle finger — and, voilà, a New England Muzzle Award

Retired Vermont State Police Sgt. Jay Wiggen

Among the most toxic behaviors that we often see in police officers is the tendency of some of them to overreact if they think they’re being disrespected. What they deserve, as public servants doing a difficult and dangerous job, is our cooperation. That doesn’t mean we have to like it.

Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a recent account in The New York Times, in February 2018 Riggen pulled over a driver named Gregory Bombard — twice — for giving him the finger. Bombard denied it, but then did, in fact, flip off Riggen and cursed. Bombard was arrested and charged with two counts of disorderly conduct, charges that were later dismissed.

It got worse. The Times story, by Sara Ruberg continues:

According to the lawsuit, which was filed in 2021, the police circulated Mr. Bombard’s mug shot to local news outlets after his arrest and towed his car from where he had pulled over. Lawyers representing him said that last Christmas the state police issued another citation ordering him to be arraigned on a disorderly conduct charge in connection with the 2018 episode after the dashcam footage of his arrest was circulated and the police received public pushback.

Bombard last month received a $175,000 settlement. And Riggen, who retired at the end of May, is receiving a New England Muzzle Award.

An account by Juan Vega de Soto for the nonprofit news outlet VTDigger includes some other details. After pulling Bombard over, Riggen admitted that he was probably wrong in thinking that Bombard had flipped him the bird — not that it should have mattered. Vega de Soto writes:

In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE [the Foundation for Individual Rights and Expression] made the dash cam footage of the arrest public late last year.

In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”

As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.

In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”

Bombard sued with the help of the Vermont ACLU and FIRE. As FIRE senior attorney Jay Diaz put it in a statement: “We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech.”

Now, admittedly, Bombard’s response to Riggen was not exactly the smartest thing he could have done. But it was protected by the First Amendment, and Riggen should have acted accordingly instead of punishing Bombard for failing to show him the respect his mistakenly thought he was entitled to.

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Plymouth official threatens reporter for recording a public, live-streamed meeting

On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.

Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:

There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.

Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.

Let’s count up the absurdities.

The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?

Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”

But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.

When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”

Two other points of note.

First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.

Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.

Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.

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Appeals court rules that school officials had a right to ban anti-trans T-shirts

Liam Morrison. Handout photo via Nemasket Week.

Not surprisingly, a federal appeals court has ruled against a Middleborough student who sued the school system after he was banned from wearing two T-shirts with anti-transgender messages.

According to an article by Sawyer Smook-Pollitt in Nemasket Week, Chief Judge David Barron, writing for the First Circuit Court of Appeals, ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.” John R. Ellement covered the story for The Boston Globe as well.

Earlier, Morrison lost in U.S. District Court. At this point, his only recourse would be an appeal to the U.S. Supreme Court. Given the high court’s lurch to the right, maybe his high-profile backers at the Massachusetts Family Institute, a religious-right organization, will give it a try.

As I’ve written previously, Liam Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”

This was not an easy call. At root, the First Amendment exists to protect unpopular speech, and Morrison’s T-shirts were surely unpopular among his LGBTQ classmates and their allies. On balance, though, I think school officials and the courts have gotten it right.

As Judge Barron observes, the T-shirts’ message was demeaning to trans students and dismissive of their very identity. By contrast, if a student wore a pro-transgender T-shirt, that would not represent any sort of threat or insult to non-trans students. In addition, the courts have ruled repeatedly that public school students’ First Amendment rights are limited when they are on school property. The school handbook in Middleborough bans clothing that targets “groups based on race, ethnicity, gender identity, religious affiliation or any other classification.”

For all these reasons, I’ve refrained from giving a New England Muzzle Award to Middleborough school officials, even though Morrison and his family no doubt believe they’ve been muzzled.

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Great Barrington teacher sues town, school district and police over classroom search

When we handed out a New England Muzzle Award last December in connection with a needless middle school controversy over the book “Gender Queer,” we had to settle for anonymity: it wasn’t clear who had contacted the Great Barrington Police Department to complain that they’d found a copy in a classroom at the W.E.B. DuBois Middle School.

Well, now we have a candidate. According to a federal lawsuit filed by eighth-grade English teacher Arantzazú Zuzene Galdós-Shapiro, the complaints were filed by a “disgruntled homophobic Middle School janitor,” which led to a search of her classroom. The janitor is not named in the suit, but a report commissioned by school officials identified him as Adam Yorke and said he was no longer employed by the school district, according to a Feb. 24 article by Berkshire Eagle reporter Heather Bellow. We invite Yorke to contact us so that he can make arrangements to pick up his prize.

News of the lawsuit was broken earlier this week by Bellow, who’s been following this story from the beginning. The Boston Globe’s John R. Ellement picked up on it as well.

According to the lawsuit, Yorke may have instigated the incident, but others are far from blameless. The suit also names the town, the school district, Police Chief Paul Storti, Police Officer Joseph O’Brien and School Superintendent Peter Dillon. As Bellow reports, “Yorke had accused Galdós-Shapiro of letting a student sit on her lap and to keep information from parents. He also had provided police with photos of some content of the book that shows the explicit sexual images.” Bellow adds:

A criminal investigation was quickly dismissed after Storti and Dillon and the Berkshire District Attorney’s Office determined that the book was not “pornographic,” and after Yorke was revealed to have an “axe to grind” against the district. But the allegations “left her devastated and profoundly shaken, ill, distressed, and fearful, her reputation publicly destroyed,” the court document says.

Among other allegations against the school district, the teacher said Dillon “knew well and failed to follow the established process for challenging classroom content.”

In other words, Galdós-Shapiro alleges that the defendants backed off only after trampling on her rights. That happened, she charges, because she had been singled out as “a queer Mexican-American.”

“Gender Queer” is an illustrated book by Maia Kobabe that aimed at kids who are questioning their sexuality and that is among the country’s most frequently banned books.

Note: My original post in December mistakenly said that “Gender Queer” had been found in the school library rather than in a classroom. I’ve gone back and corrected that post.

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How our shameful public records law is affecting the Karen Read murder trial

Massachusetts Statehouse. Photo (cc) 2015 by Upstateherd.

The murder trial of Karen Read is, without question, one of the strangest spectacles we’ve seen in Massachusetts for a long time.

Read has been charged with driving over her boyfriend, former Boston police officer John O’Keefe, and leaving him to die in a snowbank. Read counters that she’s being framed — that, in fact, O’Keefe was beaten up, bitten by a dog and dragged outside. Adding to all of this is a murky federal investigation of the Norfolk County district attorney’s office and the involvement of Aiden Kearney, the Turtleboy blogger who has taken up Read’s cause and who’s been charged with witness intimidation and illegal wiretapping.

In one sense, though, it’s a very familiar story. Crucially important evidence is being withheld from the public because of our state’s restrictive public records laws. As Sean Cotter reports in The Boston Globe, autopsy reports are not considered public records in Massachusetts. We’re not unique in that regard. Citing information from the Reporters Committee for Freedom of the Press, Cotter writes that among the very few states where autopsy records are considered public are Alabama, Colorado, California and Florida.

“If the public cannot see the documents that judges rely on in the course of making decisions, the public cannot make decisions on whether the judge’s decisions are correct,” First Amendment lawyer Jeffrey Pyle told the Globe.

The Norfolk DA’s office turned down the Globe’s public records request, with spokesman David Traub telling the paper, “The examination and cross-examination of the medical examiner will be where you get your answers.”

Massachusetts has long had a reputation for being among the worst states with regard to open government. About a decade ago, the Center for Public Integrity gave the state a D-plus in an overall accountability score as well as an F for public access to information. The state’s public records law was strengthened in 2016, but it remains woefully inadequate.

So let’s give a New England Muzzle Award to the Massachusetts legislature for failing to take any meaningful action to ensure that the public’s business will be conducted in public. The autopsy report on Officer O’Keefe’s death should be made public — and that’s just a small part of the much larger problem that our elected officials would rather operate in the dark than let the light shine in.

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AG Campbell boosts free speech for electeds, while an anti-trans shirt goes to court

Attorney General Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

A past winner of a New England Muzzle Award is in the news, while a more ambiguous case is making its way through the federal courts.

First, Massachusetts Attorney General Andrea Campbell recently issued guidance stating that local elected officials have no fear of violating the state’s open meeting law if they take part in re-election activities such as debates or candidate forums where they discuss pending municipal business. Campbell’s decision follows a ruling by our Muzzle winner, Waltham City Solicitor John Cervone, that such activities would be “potentially problematic,” raising the specter that officials running for re-election would be barred from any substantive discussion of local issues.

Campbell’s guidance was hailed in a Boston Globe editorial, which noted that a similar situation had arisen in Newton. The editorial observed that Campbell gave her blessing even to situations at which a quorum of officials are present (for instance, three members of a five-member selectboard) “as long as they address their answers to the public, not to each other.” Campbell’s guidance reads in part:

The Open Meeting Law does not restrict an individual’s right to make comments to the general public, particularly as a candidate for office. Rather, it restricts communication between or among a quorum of a public body outside of a meeting; thus, the intent of the public official is an important consideration.

The Waltham and Newton restrictions were absurd, and Campbell was right to set them aside.

Second, Liam Morrison of Middleborough, Massachusetts, who as a seventh-grade student last year was banned from wearing an anti-transgender T-shirt to school, has taken his case to the U.S. Court of Appeals for the First Circuit after losing his bid to overturn the ban in federal district court. Morrison wore a shirt that said “There Are Only Two Genders.” And when that didn’t pass muster, he returned to school with a T-shirt that said “There Are [Censored] Genders.” That earned him a trip back home as well.

According to a report by Reuters, the appeals court seemed unimpressed with Morrison’s free speech argument at a recent hearing. Here’s part of the Reuters article:

U.S. Circuit Judge Lara Montecalvo contrasted the shirt with a brochure handed out by students expressing a particular message, saying unlike those pieces of paper, a student could not throw away the shirt that Morrison was wearing.

“A T-shirt that is worn all day is worn all day,” she said. “You have to look at it, you have to read it.”

Deborah Ecker, a lawyer for the Middleborough School Committee, said the school officials’ actions were motivated by concern for the mental health of LGBTQ students, “who are captive in this classroom looking at it.”

Boston Globe columnist Jeff Jacoby sides firmly with Morrison, writing:

In court filings, Middleborough’s lawyers argue that the school was entitled to suppress Morrison’s message out of concern that it could have led to “disruption.” Yet contrary messages are permitted. No discipline was imposed when a student came to class in a “He she they, it’s all okay” T-shirt. School administrators cannot have it both ways, allowing students to express the popular side of a debatable issue but silencing those who disagree because their opinion might provoke an angry reaction. The First Amendment does not bow to the heckler’s veto.

My own opinion is that this is not as simple as Jacoby makes it seem. As Jacoby himself notes, public school students have limited free speech rights when they are on school grounds. And though there’s a certain logic to the either/or choice Jacoby presents, it doesn’t hold up to closer scrutiny. An anti-LGBTQ message expresses animosity toward specific people, including fellow students whose orientation is something other than he or she. A pro-LGBTQ message affirms everyone’s humanity without — and this is the key — expressing any animosity toward people like Morrison who hold a different viewpoint.

Given that difference, it seems to me that Middleborough school officials got it right. Based on the Reuters report, it sounds like the appeals court is likely to agree when it issues its ruling.

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