The Jan. 6 select committee’s decision to ask Sean Hannity to testify carries with it a few nettlesome details.
The Fox News star’s lawyer, Jay Sekulow, has already invoked the First Amendment. But there is, in fact, no constitutional protection for journalists who are called to testify in court or, in this case, before a congressional committee. The problem, as the Supreme Court explained in its 1972 Branzburg v. Hayes decision, is that granting such a privilege requires defining who’s a journalist and who isn’t. And the First Amendment belongs to everyone.
That said, the government is generally loath to force journalists to testify because of the chilling effect it would have on the ability of news organizations to operate as independent monitors of power. It would be well within bounds for the committee to decide that Hannity is not a journalist. He was a close confidant of Donald Trump when Trump was president, was a featured speaker at a Trump rally and, in his communications with the White House, made it clear that he was a member of Team Trump.
But this brings us back to one of the central dilemmas of the Trump years. Hannity’s behavior was so over the top that it’s easy to say he’s not a journalist. Still, you can be sure that Trump’s defenders will point to far more ambiguous situations and say, “What about?” Ben Bradlee’s friendship with President John F. Kennedy comes to mind, as does Walter Lippmann, the ultimate insider.
The problem facing members of the select committee is that if they subpoena Hannity and other Fox News personalities, they would do so in the certain knowledge that Republicans will claim a precedent has been set and abuse it as soon as they’re in a position to do so. I have little doubt, for instance, that New York Times executive editor Dean Baquet and former Washington Post executive editor Marty Baron would be forced to testify about their papers’ coverage of the Russia scandal.
Which is why the select committee is hoping that Hannity will accept its invitation to testify voluntarily. If he refuses (as he almost certainly will), then it will have to decide whether to issue a subpoena — a move that could have far-reaching consequences.
Phil Balboni. Photo (cc) 2016 by Sylvia Stagg-Giuliano.
Phil Balboni is a journalistic legend. His latest venture is DailyChatter, a nonpartisan newsletter that covers international news. The newsletter’s staff of experienced journalists based in Europe, Asia and the United States searches for “meaning and context in this immensely complex world.”
Before creating DailyChatter, Balboni was the founder, president and CEO of GlobalPost, the highly acclaimed international news site he launched in 2008. He was also the founder and president of New England Cable News, and was vice president of news and editorial director for WCVB-TV (Channel 5) in Boston. He has been awarded almost every major honor in broadcasting, including the Peabody, Murrow and Emmy.
In our latest “What Works” podcast, Balboni talks with Ellen Clegg and me about his passion for local news as well as his hopes for a newly created professorship at the Columbia School of Journalism that was endowed in his honor.
In Quick Takes, I analyze the danger to the First Amendment posed by a New York court judge who ordered The New York Times to stop publishing confidential documents it had obtained about the notorious right-wing organization Project Veritas.
Ellen weighs in with news from Texas, where a right-wing activist named Frank Lopez Jr. is flooding the zone with disinformation about immigration, taking advantage of the void created when the local newspaper shut down.
Bill Gardner, who announced Monday that he won’t seek re-election as New Hampshire’s secretary of state after nearly a half-century in office, won a New England Muzzle Award from GBH News in 2017 for his obsession with cracking down on “ballot selfies.” Here’s the item:
Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.
In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?
A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.
Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.
Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.
The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”
Gardner, nominally a Democrat, also came under fire for refusing to step down from President Donald Trump’s bogus voting commission after the chair of that commission wrote a piece for the right-wing website Breitbart falsely claiming that Trump had actually won New Hampshire in 2016.
Don’t let the door hit you on the way out, Mr. Secretary.
Over the past few years, revenues at The Bedford Citizen, a nonprofit community website in the Boston suburbs, have ramped up from zero to more than $100,000 a year. The Citizen has done it through voluntary memberships, sponsors, grants, the NewsMatch program and — perhaps most significant — an annual glossy publication called The Bedford Guide.
The Guide is a 64-page magazine that serves as an introduction to the town. It is loaded with ads, and from what I can tell, all of them are local, from life sciences giant Millipore Sigma, which has a facility in Bedford, to the Cat Doctor. According to the Citizen’s executive director, Teri Morrow, the 2022 Guide (the third) which came out in December, will produce about $40,000 in revenues.
Now Gene Kalb, a Citizen board member who’s the main force behind the Guide, has been recognized by the trade magazine Editor & Publisher as one of its “Sales Supernovas.” He told E&P’s Robin Blinder that flexibility is a key to the Guide’s success, explaining:
The pandemic hit us just as we started our second annual Bedford Guide. The initial strategy was to approach retail establishments in town. During 2020 with almost all restaurants and retail establishments closed, we shifted our focus to larger corporate industries in town. Our publication is all about supporting our community, and the corporate neighbors in town stepped up to help us. With the retail landscape improving this year, we had a nice combination of retail and corporate advertisers.
Such revenues have allowed the Citizen to grow from an all-volunteer project to a news organization with paid employees — a managing editor, a part-time reporter and a part-time operations manager — as well as freelance fees for contributors.
Founded in 2012, the Citizen continues to grow in other ways as well. According to Google Analytics, the site had more than a million page views in 2021. Those of us who follow such things know that’s a statistic of limited value, but here’s another that’s rock-solid: about 2,200 people have subscribed to the Citizen’s free daily newsletter in a town with fewer than 5,400 households, for a penetration rate of more than 40%. (Caveat: Email being what it is, no doubt there are a number of families with more than one subscription.)
The Citizen is one of the projects that Ellen Clegg and I are tracking for our “What Works” book project. It’s encouraging to see how people in the community have come together to create a vibrant and sustainable source of local news.
Marjorie Taylor Greene. Photo (cc) 2021 by Gage Skidmore.
If I were in charge of Twitter, I would have banned Marjorie Taylor Greene, too. But let’s not kid ourselves. This was a business decision, aimed at protecting Twitter’s brand and keeping its customers satisfied. Greene’s reach will hardly be affected (her official congressional Twitter account is still online), and her fans will simply write off her punishment as further evidence that Twitter is part of the liberal elite’s global conspiracy or whatever.
Meanwhile, Joe Rogan and other right-wingers are moving to GETTR, the latest Trump-friendly Twitter alternative. And our cultural disintegration continues apace.
The Haverhill Gazette in the early 1900s. Photo via WHAV.
The Haverhill Gazette marked its 200th anniversary in 2021, and WHAV Radio has taken note of the occasion in a lengthy tribute. The Gazette, an independently owned daily for most of its existence, launched WHAV in 1947 under the auspices of a publisher who was distantly related to the Taylor family, which then owned The Boston Globe. The station was revived about 15 years ago and converted to a nonprofit, low-power FM station (it also streams) by local advertising executive Tim Coco, who continues to run it as an independent source of news.
Coco and David Goudsward trace the Gazette from its founding in 1821 to the present day. I had no idea that Haverhill’s favorite son, the poet John Greenleaf Whittier, was the editor for a brief period in the 1830s.
A long series of events that led to the shrinkage of the Gazette began in 1957, when William Loeb, the notorious right-wing publisher of the Manchester Union Leader (now the New Hampshire Union Leader), took advantage of a strike at the Gazette by starting a competing paper, the Haverhill Journal. Coco and Goudsward write that the Gazette was sold to a consortium comprising The Eagle-Tribune, then of Lawrence, now of North Andover; The Sun of Lowell; and Vermont’s Burlington Free Press.
John Greenleaf Whittier. Image via the National Portrait Gallery.
Although the arrangement somehow managed to pass antitrust muster, I’m old enough to recall stories that The Eagle-Tribune and The Sun weren’t going to let the Gazette get too good. The Gazette changed hands several more times and in 1998 was sold to The Eagle-Tribune. Today, the Gazette is a weekly. Both the Gazette and The Eagle-Tribune, which remains a daily, are owned by CNHI, a corporate newspaper chain based in Montgomery, Alabama. As Coco and Goudsward write of the Gazette:
It is better off than the thousands of newspapers that have succumbed in recent years, but still a shadow of its former self — the victim, first of consolidation that reduced it from a robust daily to a weekly, and then of the loss of its advertising base to electronic media.
For several years, I followed news coverage in Haverhill quite closely, as it was the first community chosen by the Banyan Project in which to launch a cooperatively owned news organization, to be known as Haverhill Matters. The idea never came to fruition despite years of planning. During those same years, Coco was building WHAV into a vital source of local news and information, both over the air and online.
Harry Reid. Photo (cc) 2010 by the Center for American Progress.
Harry Reid, who died Tuesday, was among the few characters I liked in Mark Leibovich’s book “This Town.” Reid, the Senate Democratic leader, was a bare-knuckles brawler with no interest in the money-and-lobbyist culture that rendered Washington a teetering wreck before Donald Trump came along and toppled it over — while he and those close to him pursued their own corrupt schemes.
There is, though, one weird blemish on Reid’s record — his claims during the 2012 presidential campaign that Republican candidate Mitt Romney hadn’t paid any taxes. “So the word is out that he hasn’t paid any taxes for 10 years. Let him prove that he has paid taxes, because he hasn’t,” Reid said on the Senate floor that August. It wasn’t true, and Reid’s only justification was to tell CNN in 2015, “Romney didn’t win, did he?”
So I found myself wondering if there was anything more to Reid’s false claim. The answer: yes, a bit. Maybe not enough to justify Reid’s lies, but more than you might recall.
Unlike virtually all of his modern predecessors, Romney released just two years of tax returns. He cited John McCain as a precedent, but FactCheck.org found that excuse to be lacking. FactCheck’s Robert Farley wrote in July 2012:
In more than three decades, no other nominees for either party have released fewer than five years’ worth of returns. Romney’s own father released a dozen years’ worth when he ran for the GOP nomination in 1968.
Romney has been under mounting public pressure to release tax returns — largely due to the Obama campaign raising questions about Swiss bank accounts and investments in the Cayman Islands, a tax haven. Romney has released his tax returns for 2010 and an estimate for 2011 (the full return of which he says he will release later). He says that’s enough.
So here you have Romney, a noted liar in his own right, refusing to release tax returns that might have blown his campaign out of the water. Someone needed to put the pressure on him. The Obama campaign could only say so much. Reid took the hit, making up a false accusation that Romney wasn’t paying any taxes and essentially saying: Prove I’m lying.
Four years later, Romney enthusiastically embraced the Reid line of attack in his efforts to derail Trump’s candidacy. Trump, as we all know, wouldn’t release any of his tax returns. Here’s what Romney said: “There is only one logical explanation for Mr. Trump’s refusal to release his returns: There is a bombshell in them. Given Mr. Trump’s equanimity with other flaws in his history, we can only assume it’s a bombshell of unusual size.”
Expressed in Mitt-speak rather than with Reid’s pugnacity, but essentially the same thing.
Romney finally released a fuller set of tax returns in September 2012. At that point, though, the damage had already been done. And no, Reid did not cover himself with glory in that episode. But Romney could have done the right thing at the start of his campaign rather than opening himself up to charges that there must be hiding a “bombshell” — as Romney himself would put it four years later.
What is New York Supreme Court Judge Charles D. Wood thinking?
On Christmas Eve, Wood issued an order forbidding The New York Times from publishing confidential documents it had obtained detailing legal advice given to Project Veritas, a right-wing organization that specializes in hidden cameras and infiltration. Moreover, Wood ruled that the Times would have to return the documents to Project Veritas and destroy any electronic copies that it held.
“In defiance of law settled in the Pentagon Papers case,” said Times publisher A.G. Sulzberger in a statement, “this judge has barred The Times from publishing information about a prominent and influential organization that was obtained legally in the ordinary course of reporting.”
The decision follows a temporary ruling Wood issued more than a month ago to stop the Times from making further use of the documents. The Times appealed that ruling, but an appellate court declined to act. (On late Tuesday, a state appeals court ruled that the Times does not have to turn over or destroy the documents in its possession, at least for now.)
Here’s some background. Last spring, Project Veritas, headed by the notorious James O’Keefe, sued the Times for libel, claiming that the Times’ reference to two Veritas videos about voter fraud as “deceptive” was false and defamatory.
Then, in an unrelated matter, the Times in November published a story following up news that federal officials were investigating Veritas’ possible involvement in stealing a diary kept by Ashley Biden, President Joe Biden’s daughter. In that story, the Times quoted from confidential documents that Veritas had received from its lawyers on how to carry out its dubious stunts while avoiding legal trouble. Those documents predated Veritas’ lawsuit against the Times by several years. The Times contends they were obtained through its reporting, not through pretrial discovery in the libel case.
And by the way, don’t be fooled by Wood’s lofty title — there are 62 supreme courts in New York State. He is, in fact, a trial-court judge, elected to that position in 2009 after serving as an aide to former state senator Nicholas Spano, a Republican who pleaded guilty to federal tax-evasion charges in 2012.
But you don’t have to have a sterling judicial pedigree to know that if the First Amendment stands for anything, it stands for the proposition that the government may not ban anyone from publishing or broadcasting. Yes, there are certain narrowly drawn exceptions; serious breaches of national security, incitement to violence and obscenity may all be censored.
Still, the rule against prior restraint is robust enough to have led the Supreme Court to allow the Times and The Washington Post to publish the Pentagon Papers, the government’s own secret history of the Vietnam War. It also led a federal judge in 1979 to agonize over a decision to prohibit The Progressive, a small left-wing publication, from publishing an article on how to build an atomic bomb.
“A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” U.S. District Court Judge Robert Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.” (Warren imposed a temporary restraining order and told The Progressive and the government to work out a compromise. That order was rendered moot when a different publication ran a similar article.)
No such agonizing over the prospect of muzzling the press is evident in Wood’s opinion. Take, for instance, his ruling that the information contained in the confidential documents the Times reported on are not a matter of “public concern.” A finding to the contrary might have opened the door to the Times’ publishing the documents despite Wood’s erroneous assertion that the attorney-client privilege is at stake.
“Undoubtedly, every media outlet believes that anything that it publishes is a matter of public concern,” Wood wrote. “The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half.”
This is Wood setting himself up as editor, deciding what’s newsworthy and what isn’t. The documents concerned advice from Project Veritas’ lawyers on how to avoid legal trouble when carrying out its undercover operations. Surely that’s of public concern, especially since the courts have set the threshold for newsworthiness at a very low level precisely so that they can avoid playing editor.
But the larger issue here is Wood’s breathtakingly expansive definition of what’s covered by the attorney-client privilege. It’s true, of course, that if the Times had simply reported on the contents of documents Project Veritas had turned over to the Times’ lawyers during pretrial discovery in the libel case, the judge would be justified in his outrage. But there is no evidence to contradict Sulzberger’s assertion that the documents were obtained in the normal course of reporting — as Wood concedes.
“There is nothing in the record to show how the Times obtained the privileged memoranda that belong to Project Veritas,” Wood wrote. “That information is solely within the Times’ knowledge and possession, and it has not offered any explanation beyond vaguely stating that the memoranda were obtained through its ‘newsgathering effort.’”
Wood follows that up with a weird, gratuitous suggestion that perhaps the Times obtained the documents through bribery. And then, in ruling against the Times, Wood wrote:
“The Times is perfectly free to investigate, uncover, research, interview, photograph, record, publish, opine, expose or ignore whatever aspects of Project Veritas its editors in their sole discretion deem newsworthy, without utilizing Project Veritas’ attorney-client privileged memoranda.”
In other words, the Times is not free to publish or report on the documents in question even though it claims to have obtained them in the normal course of reporting, and even though Wood admits there is no evidence to the contrary.
This is an outrage against the First Amendment. “The opinion is jaw-dropping in its constitutional illiteracy,” wrote Ruth Marcus in The Washington Post.
Added Stephen J. Adler and Bruce D. Brown of the Reporters Committee for Freedom of the Press: “The First Amendment does not tolerate the idea that speech can be censored in advance, even if it might be punished after the fact. This is because prior restraints do not just ‘chill’ speech on public affairs, they ‘freeze’ it, which can give the government and private litigants a powerful tool to hide information and to skew public debate.”
What’s worse is that Wood’s ruling provides an incentive for the target of investigative reporting to sue the news organization and then use that suit to shut down any further reporting by claiming attorney-client privilege. Theodore J. Boutrous Jr., a media lawyer whose clients include CNN, put it this way in an interview with the Times:
“It’s an egregious, unprecedented intrusion on news gathering and the news gathering process. The special danger is it allows a party suing a news organization for defamation to then get a gag order against the news organization banning any additional reporting. It’s the ultimate chilling effect.”
The Times says it plans to appeal Wood’s decision. Good luck with that. Although it presumably would take a few years, eventually the case might make its way before the U.S. Supreme Court. With a right-wing majority, the court could, if it chose, inflict incalculable damage.
We should all hope that Wood’s assault on freedom of the press is halted at the state level — and that this threat to the First Amendment fades to the obscurity it deserves.
It was obvious to just about everyone that the media were going to face a challenging year after losing the artificial stimulant provided by the Trump presidency. “Will audience and revenue resume the downward track they had been on for years before Trump demanded everyone’s unwavering attention?” I asked last January.
The answer: Yes, indeed.
David Bauder of The Associated Press has pulled together the numbers. The situation is especially grim on cable news, where weekday prime-time viewership was down 38% at CNN, 34% at Fox News and 25% at MSNBC. (Fox still has by far the largest audience of the three.)
I’m not shedding any tears, crocodile or otherwise. Cable news is bad for you. The formula at all three consists of keeping you riled up and angry so that you don’t change the channel. Fox adds weaponized right-wing propaganda about COVID, the Jan. 6 insurrection, critical race theory and more. So please, touch that dial.
Then again, everything’s down, not just cable news. Viewership of the three network evening newscasts — higher quality than their cable brethren — declined 12% to 14%. Unique monthly visitors to the websites of The New York Times and The Washington Post dropped — although paid digital subscriptions to the Times are up, and that’s the metric that really matters. The Post, on the other hand, reportedly dropped from about 3 million to 2.7 million digital subscriptions toward the end of the year.
None of these numbers is inherently bad. We were glued to the news to an unhealthy extent during Trump’s presidency, as we all wondered what demented action he was going to take next. Then, in 2020, we had COVID to deal with as well.
There is still plenty of news taking place. COVID remains with us, the Republican Party has gone full-bore authoritarian and Trump has never really gone away. But things are a bit calmer, if not necessarily calm.
With national news commanding fewer eyeballs, will some of that attention be diverted to local journalism? I’d like to hope so. But with hedge funds and corporate chains hollowing out hundreds of community newspapers, in a lot of places there just isn’t enough to command attention.
Please support this free source of news and commentary by becoming a member of Media Nation for $5 a month. Just click here.
.jpg){kind=link}
.jpg){kind=link}
