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Category: New England Muzzles Page 1 of 2

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

Photo (cc) 2022 by John Ramspott

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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NH newspaper publisher fined $620 for running unlabeled political ads

The saga of Deb Paul, the New Hampshire newspaper publisher who was threatened with six years in prison for running improperly labeled political ads, has finally come to an end, reports Damien Fisher of InDepthNH. On Wednesday, Derry District Court Judge Kerry Steckowych fined Paul $620, which adds up to $124 for each of the five counts the judge had convicted her of on Dec. 7. Paul had originally been charged with six counts, which carry a maximum sentence of a year in prison and a $2,000 fine for each violation.

Paul publishes the Londonderry Times and, at the time that the offenses took place, was also the publisher of the Nutfield News and the Tri-Town Times, which have since folded. Under New Hampshire law, it is a crime to publish political advertising without labeling it as such. The First Amendment allows for some regulation of paid political ads, but the law making such minor violations a crime rather than a civil offense strikes me as excessive, as does the zeal of the state attorney general, John Formella, who let the possibility of prison time hang over Paul’s head for nearly a year and a half.

It has to be said that Paul seems like a piece of work. Back in August 2022, shortly after the charges were filed, I published the results of some digging by friend of Media Nation Aaron Read, who discovered that Paul was not just the owner of the Londonderry Times — she was also a member of the town council. In February 2021, her fellow councilors complained about an editorial she published, saying she had engaged in “bullying” for writing, “Are you frustrated that nobody at town hall is listening to you? Do you feel that your town or school officials have an excuse for everything or justify decisions you don’t agree with?” In an interview with The Eagle-Tribune, Paul denied that was aimed specifically at her colleagues. Paul is apparently no longer a member of the council.

According to InDepthNH, the prosecution argued that draconian action was necessary because Paul was a serial offender who had failed to comply with the law despite earlier warnings. Paul, through her lawyer, said her violations were inadvertent. She also declined to speak with InDepthNH.

Judge Steckowych deserves credit for meting out a punishment that is more or less in line with a civil offense. And it’s time for the state legislature to intervene and reform the law so that other publishers are no longer in danger of being locked up for what amounts to a minor campaign finance violation.

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A Muzzle Award for the anonymous troll who reported ‘Gender Queer’ to the police

Photo (cc) 1928 by Blue Mountains Library, Local Studies

There’s an unidentified person somewhere out there who has richly earned a New England Muzzle Award, and I hope they’ll step forward to claim their trophy. Because this censorious busybody, hiding behind a cloak of anonymity, actually called the Great Barrington Police Department recently to complain that a middle school classroom had a copy of the notorious-though-it-shouldn’t-be book “Gender Queer,” by Maia Kobabe, on its shelves.

The oft-banned book, which includes graphic images, is used by a number of educators as a resource for young people who are questioning their sexuality. At the W.E.B. DuBois Middle School, though, a police officer actually showed up after school hours and, accompanied by the principal, paid a visit to the classroom so he could see for himself. According to Heather Bellow of The Berkshire Eagle, the officer actually turned on his body camera before beginning his search. “The officer then searched for the book and planned to remove the book as part of the investigation,” Bellow reports, but he couldn’t locate it and ended up leaving. (Bellow also wrote the initial story about the incident.)

Now, you may ask why the police department in this Western Massachusetts town isn’t being awarded a Muzzle. The reason is that it’s not clear they did anything wrong. The person who called the police department sent images that they claimed were from an obscene book. Obscenity, a tiny subset of indecent material, is actually illegal. It can be hard to define (the late Supreme Court Justice Potter Stewart once memorably said, “I know it when I see it”), but you can imagine that it’s pretty bad given that nearly all indecency is protected by the First Amendment. To be clear: “Gender Queer” doesn’t come within a mile of violating any obscenity laws. But Great Barrington Police Chief Paul Storti told Adam Reilly of GBH News that his officers were obliged to respond to what may have been a legitimate complaint. Reilly quoted Storti as saying:

The interaction with the teacher was cordial. The officer didn’t touch anything. They didn’t search. They basically asked if the book was still there, to give the context of what we were dealing with dealing with. The teacher said the book wasn’t there, and the officer left.

I’ll grant you that Storti’s comments are at odds with the Eagle’s report that the officer “searched for the book,” but I’ll have to leave that unresolved for now. The larger issue is that a member of the community saw fit to mobilize law enforcement because of the possible presence of a much-praised book.

The fallout has been significant. The ACLU is seeking the body-camera footage. More than 100 students and staff walked out of Monument Regional High School to protest the attempt at censorship, earning praise from Gov. Maura Healey, who said, “Book banning has no place in Massachusetts.” And the Eagle ran a letter to the editor today that said in part, “Let’s make the book recommended reading for all middle school parents and faculty, and then organize a public forum to discuss the book.”

Although the Great Barrington Police Department has avoided the ignominy of receiving a Muzzle Award, Chief Storti and Berkshire District Attorney Timothy Shugrue, whose office also got involved, need to engage in some discussion and training about what to do the next time something like this happens. Because we all know that it will.

Correction, May 17, 2024: This post originally said that the search took place in the school library. In fact, it was in a classroom.

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A NH publisher faces sentencing, while a small town in Mass. says no to drag

North Brookfield Town Hall. Photo (cc) 2009 by John Phelan.

A New Hampshire newspaper publisher has been found guilty of publishing political advertising that did not include legally required labeling. Debra Paul was convicted of five misdemeanor counts in a bench trial presided over by Derry District Court Judge Kerry Steckowych, according to Damien Fisher of the nonprofit news organization InDepthNH. Sentencing is scheduled to take place Dec. 20. The 64-year-old publisher faces a possible sentence of one year in prison and a $2,000 fine on each of the five counts.

I’ve been following this case for more than a year because of its absurdity. The state attorney general’s office says that Paul broke the law on several occasions by publishing ads for local candidates and warrant articles in two weekly newspapers that she owned, the Londonderry Times and the Nutfield News, the latter of which has stopped publishing. It seems to me that someone — maybe the state legislature, which could correct this travesty — deserves a New England Muzzle Award. Two reasons:

  • The first is that lawmakers in the Live Free or Die State have decided, for whatever reason, that minor violations of campaign laws should amount to crimes rather than civil offenses. I’d be very surprised if Paul does any time behind bars, but the threat is there, and she’s been living with it for more than a year, when the charges were initially filed.
  • The second is that even though the First Amendment allows for the regulation of political advertising, there was no intent to deceive. In my first post on this case, I reproduced a candidate ad that appeared in one of Paul’s papers. It’s properly labeled as a “Political Advertisement,” but if that was removed, would anyone think it’s anything other than an ad? Of course not. Enforcement ought to be reserved for deliberately deceptive political ads, such as those that could be confused with actual news articles.

We’ll see what Dec. 20 brings. I hope that Judge Steckowych hits Paul with, at worst, a token fine — and has something to say about governmental overreach into an arena where it can do the most damage: political speech.

***

The select board in North Brookfield, Massachusetts, and two of its members have been sued by the ACLU of Massachusetts because they refused to approve a 2024 Pride celebration on the grounds that the event is scheduled to include a drag performance. The lawsuit was filed in conjunction with the Rural Justice Network, which is headquartered in North Brookfield and whose Facebook page describes the organization as providing “education that informs an equitable and peaceful society in Rural America.” Carol Rose, the ACLU’s state executive director, said in a press release:

This is discrimination based on the viewpoint our clients seek to express: that all members of the community deserve to live and participate fully, openly, freely, and joyously. Let’s be clear: The government has no right to censor LGBTQ+ people or their right to assemble and express themselves.

The two individual members who were sued, chair Jason Petraitis and vice chair John Tripp, both voted against the permit, and are thus receiving New England Muzzle Awards. There are only three members of the board, which means they comprise a majority. It also seems pretty rich that a three-member body would have both a chair and a vice chair. The third member, Elizabeth Brooke Canada, has a title, too — she’s the clerk.

According to the ACLU, Petraitis and Tripp are recidivists, having also voted against allowing the Rural Justice Network to include a drag performance during a 2023 event, which was held anyway after the ACLU and the town’s lawyer intervened.

Jeff A. Chamer of Worcester’s Telegram & Gazette has quite a report on the board meeting at which the latest permit application was rejected. The highlight is Petraitis telling a representative from the Rural Justice Network, “You can get the approvals from other people, but the same thing’s gonna happen this year that happened last year: I’m not voting for it. If you’re not gonna have that stuff hidden from kids, I’m not voting for it.”

And when Canada suggested to Petraitis that failure to approve the permit would violate the town’s parks and recreation policy, Petraitis responded: “I really could care less.”

Canada then offered a motion to approve the permit, which was rejected on a 2-1 vote.

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A Muzzle for the officers who removed a teenage journalist from a GOP event

Quinn Mitchell, right, with Chris Christie and his wife, Mary Pat Christie. Photo (cc) 2023 by NHpolitico.

It’s hardly a surprise that Republican officials in New Hampshire would throw a 15-year-old out of a political event for doing nothing other than shooting video. But there is no excuse for police officers going along with their outrageous demand.

According to Samantha J. Gross of The Boston Globe, Quinn Mitchell, an aspiring journalist who’s become something of a celebrity for asking tough questions of presidential candidates, was escorted out of a political event at the behest of party officials in Nashua, New Hampshire, on Friday — apparently because someone didn’t like his recording videos of a longshot presidential candidate.

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“They told me I was being a disruption,” Mitchell was quoted as saying. “I was taking a video like anybody else.” He added that five officers were involved in removing him from the Sheraton Nashua hotel.

Quinn said that a party official told him he was being kicked out because he had a reputation for disrupting events. No doubt that official was referring to Mitchell’s journalism, which can indeed be disruptive because he does it the right way. Earlier this summer Quinn asked Florida Gov. Ron DeSantis, “Do you believe that Trump violated the peaceful transfer of power, a key principle of American democracy that we must uphold?” He also asked former New Jersey Gov. Chris Christie, a born-again Never Trumper, whether Hillary Clinton would have been a better choice than Donald Trump in 2016.

Although Mitchell was reportedly back in the hall Friday an hour after his removal, the incident led to a story in The New York Times. It also leads to an important question: Should police officers who work for the public go along with a demand to remove a teenager — or anyone — from an event simply because he was exercising his First Amendment rights? The answer, quite obviously, is no, and it really doesn’t matter whether the officers were on the taxpayers’ dime or if they were being paid as part of a private detail. (The Times reported that it tried and failed to get a comment from the Nashua police department.)

For that, police officers who removed Mitchell from the hotel have earned a New England Muzzle Award.

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A Muzzle Award goes to an R.I. city councilor who threw a critic out of the chambers

The Providence Journal’s Antonia Noori Farzan reported last month that a land transfer to Donna Travis, a member of the city council in Warwick, Rhode Island, had come under scrutiny, with the new leaders of a group that gave Travis the land raising questions about possible improprieties. Travis denied any wrongdoing.

It wasn’t the first time that Travis’ behavior had come under scrutiny. Back in 2017, she admitted she’d violated the state’s ethics code and paid a $1,200 fine. According to the Journal’s Carol Kozma, Travis’ case stemmed from her mixing her roles as a city official and as an executive at local nonprofit organizations. (I was able to access Farzan’s story through my USA Today subscription, but the process is convoluted and I don’t have a working link.)

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What brought this to my attention is what happened next. At a July 17 city council meeting, a Warwick resident named Rob Cote — identified by Rob Borkowski of the Warwick Post as a “frequent city critic” — was escorted out of the council chambers by a uniformed police officer after he had the temerity to wave a copy of the Journal at the council members and say, “First, I’d like to congratulate Councilwoman Donna Travis. Another front page of The Providence Journal.”

According to the Post and to a video of the proceedings rebroadcast on WPRI-TV (Channel 12), Travis immediately interjected that Cote would be thrown out if he failed to restrict his comments to matters involving city government.

Cote: “This is about city government.”

Travis: “Stick to a topic about city government or else you’ll be escorted out.”

Cote: “This is about city government. It’s actually mentioned about the Warwick City Council.”

Travis: “Did you hear what I just said?”

After telling Travis that the ACLU would hear about her attempts to squelch him, Cote was led out of the building. And sure enough, the ACLU of Rhode Island has gotten involved, writing a letter in conjunction with the New England First Amendment Coalition in which they “call upon the Council to reassure the public that this type of response will not be repeated and that residents will be free to speak at future meetings on matters involving city government without fear of being silenced.”

For her censorious efforts to shut down public discussion of an issue involving city government, Donna Travis has earned a New England Muzzle Award.

Now, let me tease out a few of the nuances here. As noted in the ACLU-NEFAC letter, signed by Steven Brown, executive editor of the ACLU of Rhode Island, and Justin Silverman, executive director of NEFAC, the city of Warwick imposes certain restrictions on members of the public who wish to speak at governmental meetings. One is that their comments pertain to issues “directly affecting city government.” But as the letter notes, Cote was shut down barely before he could get a word out, and, in any case, the property dispute involving Travis was “clearly a topic of public concern.”

In addition, the letter notes that Travis told the Warwick Beacon “it was the unwritten practice of the City Council not to allow ‘personal attacks’ during the public comment period.” Brown and Silverman respond that, “leaving aside the impropriety of relying on an ‘unwritten’ policy to censor the speech of a member of the public, any such policy itself is just as problematic from a First Amendment standpoint. In fact, courts have often struck down such restrictions as a violation of the public’s free speech rights.”

The other nuance I want to bring up is that the lack civility at local public meetings has become a real problem, making it difficult for elected officials to conduct business and driving some of them out of government. We’ve all seen televised school committee meetings at which out-of-control members of the public start screaming about critical race theory, transgender issues, vaccines or whatever. It can be difficult to know where to draw the line. Earlier this year, the Massachusetts Supreme Judicial Court ruled that local officials had gone too far in silencing a woman who twice called a select board chair “a Hitler.”

In the Warwick case, though, Cote comes across as polite, if sarcastic, and ready to talk about a matter of considerable public concern.

Travis might also consider the Streisand effect. Few people would know about the property dispute if she hadn’t tried to silence Cote. All around, it was a pretty sad performance by someone who was elected to act in the public’s best interest.

Correction: This post originally said that Travis was “led out of the building.” It was, of course, Cote.

The Mystic Valley Charter School, winner of a 2017 Muzzle, is back to its old tricks

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

The Mystic Valley Regional Charter School — recipient of one of the all-time most outrageous New England Muzzle Awards back in 2017 — is in trouble once again, this time for its insistence on conducting the public’s business behind closed doors. Adam Gaffin of Universal Hub reports that state Attorney General Andrea Campbell’s office has asked a judge to order that the taxpayer-funded school produce public documents it has refused to hand over despite requests at the local level as well as repeated demands by Secretary of State Bill Galvin.

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School officials claim they do not have to comply because Mystic Valley, based in Malden, doesn’t meet the definition of a “public school,” even though state law specifically describes charter schools as such. In any case, they say they won’t produce the records until a judge orders them to do so, notwithstanding the fact that the state public records law empowers the secretary of state to enforce the law.

The records, sought by Malden News Network, a local journalism outlet; Commonwealth Transparency, an advocacy group; and Malden mayoral candidate Lissette Alvarado cover a wide range of issues, including payroll, contracts, conflicts of interest, accountings of school income, copies of emails, and documents regarding Boston Globe stories about the school.

Now, to get back to that 2017 Muzzle Award from GBH News. During the 2016-’17 school year, Mystic Valley administrators began enforcing a dress-code prohibition against hair extensions, worn most often by Black female students. After parents complained about the clearly racist policy, school officials doubled down, leading to reporting by The Boston Globe and other news organizations. Yet the school refused to back down until then-Attorney General Maura Healey intervened.

That stiff-necked refusal to acknowledge its own wrongdoing obviously hasn’t changed over the years. When a judge finally orders the school to produce public documents, it will be interesting to see whether Mystic Valley complies — or if, instead, its administrators decide the judge somehow improperly claimed jurisdiction, or was wearing the wrong-colored robe or something.

If you want to read the full complaint, Adam’s posted it at the link above. The Boston Globe reports on Campbell’s lawsuit here. And Malden News Network has posted an item on its Facebook page.

Muzzle follow-up: RFK Jr. loses his appeal over Warren’s criticism of his COVID book

Sen. Elizabeth Warren. Photo (cc) 2019 by Gage Skidmore.

A federal appeals court has sided with U.S. Sen. Elizabeth Warren in her battle with Amazon over a book that promoted falsehoods about COVID-19. Presidential candidate and noted conspiracy theorist Robert F. Kennedy Jr., who contributed to the book, sued Warren on First Amendment grounds, but Adam Gaffin of Universal Hub — who keeps an eye on the courts so that I don’t have to — reports that the U.S. Court of Appeals for the Ninth Circuit recently ruled that Warren has the same right to criticize Amazon as anyone else.

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Last July, I gave Warren a New England Muzzle Award, arguing that though she did indeed have the right to criticize Amazon, a statement she issued targeting Amazon’s algorithmic promotion of books such as “The Truth about COVID-19,” for which Kennedy wrote the introduction, suggested that she was threatening to use her position as a prominent elected official to seek regulation of Amazon’s business practices. In a press release issued in 2021, Warren criticized a “pattern and practice of misbehavior” that “suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products — an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.”

Prominent civil rights lawyer Harvey Silverglate told The Boston Globe that Kennedy and his fellow plaintiffs had a strong case, saying, “You’d think that a former Harvard law professor would know better.”

But a federal district court disagreed, and now the appeals court has disagreed as well. From the appeals court’s decision:

Elizabeth Warren, as a single Senator, has no unilateral power to penalize Amazon for promoting “The Truth About COVID-19.” This absence of authority influences how a reasonable person would read her letter. A similar letter might be inherently coercive if sent by a prosecutor with the power to bring charges against the recipient…. The letter could be viewed as more threatening if it were penned by an executive official with unilateral power that could be wielded in an unfair way if the recipient did not acquiesce…. But as one member of a legislature who is removed from the relevant levers of power, Senator Warren would more naturally be viewed as relying on her persuasive authority rather than on the coercive power of the government to take action against Amazon.

Although it was admittedly a stretch to argue that Warren’s statement amounted to a threat rather than mere criticism of Amazon’s business practices, she could have followed up by holding hearings and filing legislation that would, for instance, ban the use of algorithmic promotion of books that indulge in falsehoods. We have enough book-banning going on in the country, thanks to Ron DeSantis and his ilk, without having one of our leading progressive senators taking part. Given that Warren did not actually seek to follow up her words with actions, though, I’ll concede that the courts got it right.

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