The real target of the Boston counter-protest was Trump

Bonita Yarboro traveled with three friends from Hamden, Connecticut, to protest against “racism, anti-Semitism, every -ism out there.” Photo (cc) by Dan Kennedy.

Previously published at WGBHNews.org.

There’s been so much written and said about free speech and the lack thereof at Saturday’s rally on the Boston Common that the big picture is in danger of being lost. So let me try to bring it back into focus. An estimated 30,000 to 40,000 people turned out not to protest what a few right-wingers had to say or to rumble with the police. Rather, they came to express their anger and disgust with President Trump.

Lest we forget, back in May a similar event drew just a few hundred people, with the two sides being kept apart by police officers. We might have seen a similar response this past weekend. But then a motley band of white supremacists and neo-Nazis marched in Charlottesville, Virginia. A fellow-traveler was accused of driving into a crowd of people who had come to protest against such hate, killing one of them, Heather Heyer. And Trump, on his third attempt to address what had happened, threw a temper tantrum of a news conference in which he placed racists and those who oppose racism on the same moral plane.

It was that reality that was on the minds of those who showed up at the Reggie Lewis Center in Roxbury on Saturday morning. I was among them, carrying a notebook and a smartphone with handmade press credentials around my neck so no one would think I was one of the protesters. The crowd reminded me of the folks who’d turned out in Copley Square last January to protest Trump’s first, botched Muslim ban: earnest liberals from the suburbs, Black Lives Matter activists, young people, LGBTQ people, lots of racial diversity, lots of ink (not visible last winter), and a large number of clergy. Mayor Marty Walsh, Police Commissioner Bill Evans, and Attorney General Maura Healey all put in appearances on Saturday.

There were, of course, a few political radicals on hand. Two older women who would only give me their first names held up a large banner that said “No Free Speech for Fascists” — and, in smaller type, “Progressive Labor Party,” a far-left group. I asked them if they thought their views contradicted the First Amendment’s guarantee of free speech. “There is no free speech,” Ruth instructed me. “Speech costs a lot of money.” Added Heidi: “We need to stop this hate speech.”

More typical was a young African-American woman named Bonita Yarboro of Hamden, Connecticut, who was holding a green sign that read “I am Black and I MATTER. Any questions?” I asked her what had brought her to Boston and what her hopes were for the counter-protest, dubbed “Fight Supremacy” by its organizers. “Four of us came up together in a Volkswagen Beetle,” she said. “I just want to stand up against racism, anti-Semitism, every -ism out there.”

We got under way a little before 11. The march down Tremont Street toward the Boston Common was a rolling celebration. The police officers who lined the route were professional and friendly. Charlie Pierce wrote in Esquire that Police Superintendent Willie Gross was posing for selfies with marchers.

By 1, with our destination still ahead of us, word started to ripple through the crowd that the rally was over and that the right-wing speakers had left. With the Common just ahead of me, I spotted state Rep. Byron Rushing, a South End Democrat, who told me he’d been prohibited from entering the 75-yard zone around the Parkman Bandstand that police had set up to protect the speakers. “I came down to hear them, and they wouldn’t let me in,” he said. “Freedom of speech should be reciprocal. If they can talk, I should be able to listen.”

In fact, there remain some legitimate concerns about how the authorities handled access to the bandstand. The police department had a genuine public-safety challenge on its hands, and the buffer zone was probably a necessity — but it wouldn’t have been as onerous if, say, a few pool reporters had been allowed in to hear what the speakers had to say. It didn’t help that Commissioner Evans issued a statement in which he said it was “a good thing” that the right-wingers couldn’t get their message out. The ACLU and others have expressed concern.

But the triumph of the counter-protest was not that it had silenced a few extremists (and it’s not even clear how extreme they were, given that some who had been scheduled didn’t show up). The triumph was that the crowd had expressed its opposition to the racism and hatred that these days is indulged, even amplified, by the president of the United States. I couldn’t help but feel a surge of patriotism in the face of such idealism.

Trump’s outrages come at us every day. But his sociopathic reaction to the events in Charlottesville seems like a watershed moment of the sort that greeted the “Access Hollywood” tape, on which he was heard profanely bragging about groping and sexually assaulting women. From business leaders to Republican officials, a new wave of people has begun moving away from him. Republican Sen. Bob Corker of Tennessee, presidential historian Douglas Brinkley, and investigative reporting legend Carl Bernstein are among the serious, careful folks who recently have questioned Trump’s mental stability. (Brinkley and Bernstein made their remarks on CNN.)

This can’t go on, but how will it end? Regardless of what comes next, I’m proud of my city for the stand it took this past weekend.

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Antifa is the right’s new bogeyman

Well put by The Boston Globe editorial page:

Saturday put the lie to a common whine of the so-called alt right — the loose movement of anti-Semites, neo-Nazis, white supremacists, and freelance bigots emboldened by President Trump’s election — that they are somehow deprived of their free speech rights. Nonsense. If being mocked, booed, and heckled is the alt-right’s idea of censorship, it may be time to rethink who gets labeled a “snowflake” in today’s political environment.

The fears of “antifa” violence directed at conservatives also turned out to be overblown. A few counterprotesters in black outfits showed up, made some noise, and then went home. Sorry, but left-wing cosplay isn’t a security threat comparable to neo-Nazi violence.

I’m starting to see efforts by the right to transform antifa (for “anti-fascist”) activists into a massive, violent force determined to stamp out free speech and supported by everyone to the left of, say, Hillary Clinton. The reality is that they’re the new New Black Panther Party, a bogeyman trotted out to frighten viewers of Fox News but not especially visible anywhere else. Don’t be fooled.

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Free speech took a back seat to public safety at Saturday’s demonstrations

It’s now clear why no one could hear the right-wing speakers on the Boston Common on Saturday. The police kept demonstrators 75 yards away, and the speakers didn’t have any amplification. I’m not sure whether that was a police decision or a result of their own poor planning. (And I doubt it would have made a difference.)

The police had a huge dilemma on their hands. Even though the vast majority of the 40,000 counter-protesters were peaceful, there could have been some real trouble from a few hotheads if they had been allowed any closer. There were only a few dozen right-wingers.

I’m not sure how this could have been handled differently. Someone suggested that a pool reporter should have been allowed in, and that certainly would have been better than nothing. It didn’t help that BPD Commissioner Bill Evans issued a statement in which he sounded glad that the speakers were not able to get their message out:

We had a job to do; we did a great job. I’m not going to listen to people who come in here and want to talk about hate. And you know what, if they didn’t get in, that’s a good thing ’cause their message isn’t what we want to hear.

Let’s not kid ourselves. There was real potential for violence far beyond the skirmishes that actually took place. The Boston Police did a good job of protecting public safety. But free speech took a back seat on Saturday, and I imagine we’re going to be hearing more about that in the days to come.

Update: First Amendment Rob Bertsche has similar thoughts.

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My reporter’s toolkit for today’s demonstrations

I’m heading to Boston later this morning to report on the protests for my column at WGBH News. Here is my reporter’s toolkit: unofficial press pass, business cards, notebook and $40 cash for bail — the last recommended by First Amendment lawyer Rob Bertsche, whose firm, Prince Lobel, will be on call this weekend for any journalists who find themselves in legal trouble.

My plan is to accompany the “Fight Supremacy!” counterprotesters from the Reggie Lewis Center to the Boston Common, where the white-supremacist rally is supposed to take place. I’ll try to do some live posting on Twitter right here, though it’s likely the cellular networks will be overloaded.

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The end of something. But of what?

It feels like events are accelerating and spinning out of control, and that whatever we’ve been going through with Trump is about to come to an end. I’m specifically not wording this as meaning the end of the Trump presidency, though I’m not ruling it out. My prediction that he’d somehow be gone by Labor Day may yet be on target. These are very strange, ugly, scary days.

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Trump’s morally repugnant response to the violence in Charlottesville

I’ve been trying to find the right context for President Trump’s repugnant response to the neo-Nazi violence in Charlottesville. To say that he failed the moral test of being president doesn’t quite get at it, because he’s failed every moral test ever put in front of him. But this was by far his most important test, so it’s much worse than his previous failures, even if his actual words were no different from what he’s said and hasn’t said before.

His performance Saturday was deliberate and perverse. The most plausible explanation is that he was consciously, specifically trying not to alienate the ignorant racists and white supremacists who comprise a large part of his base. I’m glad that other Republicans, including Ted Cruz, gave evil its proper name. But will they take action against Trump? Not likely.

Many sides. Many sides.

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Frederick Clay’s ordeal underscores the hazards of excessive police secrecy

By Jeffrey J. Pyle

For the past several years, police departments in Massachusetts have been routinely denying the public access to “incident reports,” the written narratives of police responses to alleged crimes. Law enforcement agencies used to disclose these reports as a matter of course, sometimes redacting sensitive information. But now, every week, I and other media lawyers at my firm hear from reporters who are being denied basic information about such things as car accidents and drug arrests. The police withhold this information despite the strong presumption in our new, strengthened Public Records Act that all government documents must be made open for public inspection unless a specific exemption makes them confidential.

The damage this excessive secrecy poses to local journalism is well reported, but it’s not only the public’s right to know that can suffer. In some cases, the refusal to release incident reports can threaten the criminal justice system itself, potentially keeping innocent people behind bars and allowing dangerous criminals to remain free in the community. This problem is illustrated by the case of Frederick Clay, who was freed from prison this week after serving 38 years for a crime he did not commit.

Around 4 a.m. on the morning of Nov. 16, 1979, a taxicab pulled up to the Archdale Housing Project in the Roslindale neighborhood of Boston. Three young men exited the cab and then pulled the cab driver, Jeffrey Boyajian, out of the car and onto the ground. Witnesses claimed that two of the assailants were around 6 feet tall, and the other was shorter, about 5 feet 8 inches. All three were wearing dark clothing, possibly including black leather jackets. The men searched through Boyajian’s pockets and beat him as he cried, “Take what you want, but let me live.” After stepping away from Boyajian, the shorter man took out a handgun with his left hand and shot Boyajian five times. The attackers fled on foot.

The police subjected two of the witnesses of the morning’s events to hypnosis to try to help them identify a suspect — a practice that would soon (thankfully) be ruled unlawful. One of these witnesses didn’t see the attack at all — he just thought he’d seen the trio get into Boyajian’s cab earlier that night. The second, a young man with an intellectual disability, saw the attack from a second-story window. Neither witness was sure he could identify anyone before hypnosis, but after it — and after other procedures that would today be deemed too suggestive — both picked out Frederick Clay, age 16.

Clay insisted he was asleep in his room at a foster home on the night of the crime, and his foster mother corroborated his alibi at trial. Clay was also right-handed, not left-handed like the shooter. But the police figured they had their suspect. That’s why they failed to follow up on indications that two other Archdale residents — a left-handed 16-year-old who was 5 feet 8 inches and his much taller brother — may have been the real culprits. On Aug. 19, 1981, a jury convicted Clay of first degree murder, and he was sentenced to life in prison.

After years of fruitless appeals and post-conviction motions, Clay’s case came to the attention of attorneys Lisa Kavanaugh and Jeffrey Harris. Kavanaugh learned of the other  suspect and his possible links to the crime, so she sent public records requests to the Boston Police for incident reports of his arrests around the time of the shooting. She was hoping to get mugshots of the suspect, details of his physical appearance, and other evidence showing that he matched the descriptions of the shooter, as well as information about his propensity to engage in robberies like the one that claimed Boyajian’s life.

The initial response of the Boston Police was a flat “no.” In a May 2015 letter, they told Kavanaugh that her request for the report of a 1985 arrest for assault and battery would be denied because she knew the names of the “parties involved” (she’d mentioned them in the requests to help the police identify the reports). and therefore their “privacy” could not be protected through redaction. Also, the police said, the report contained “investigatory material” (even though the investigation was long over) and “arrest information” that is “protected from disclosure” under the Criminal Offender Record Information (CORI) law.

These are the same justifications police departments are now using to deny access to police reports to the media, and they are wrong. As I’ve explained elsewhere, neither the “investigatory” exemption to the public records law nor the CORI statute permit the withholding of entire incident reports. Nonetheless, the Massachusetts State Police recently argued to the supervisor of records for the secretary of state’s office that it does not have an obligation even to try to redact police reports — it can instead withhold them in their entirety whenever they want.  (There’s a reason the State Police won the Investigative Reporters & Editors 2015 “Golden Padlock Award,” a national recognition given to the most secretive government agency in the country.)

Kavanaugh didn’t take no for an answer. She asked me to intercede on her behalf with counsel for the Boston Police, and after much back and forth, including a threat of a lawsuit, the police agreed to produce reports for a number of incidents involving the other suspect from the 1980s — while still insisting on redacting his name (as if Kavanaugh didn’t already know it). Those reports led to other reports, and ultimately to a section of Kavanaugh’s and Harris’ masterful 75-page motion for a new trial that addressed the similarity of the other suspect’s appearance to descriptions of the Boyajian attacker and showed his propensity to commit similar crimes.

The Suffolk County DA’s office did its own investigation in response to Clay’s motion, and this past Tuesday — just one week before Clay was to be released on parole — the office assented to his motion and decided not to re-prosecute the case. The DA’s office did so in part because it agreed that the lead on the other suspect should have been pursued. In an emotional hearing in courtroom 906, Judge Christine Roach granted Clay’s motion, ordered his shackles removed, and declared him a free man — after serving 38 years in prison for a crime he did not commit.

The incident reports in Clay’s case played only a small part in his release, but they corroborated an important alternative theory of who may have committed a heinous murder. The Boston Police should be commended for reversing their initial determination and releasing the records. But the problem remains: Absent judicial or legislative intervention, police departments will continue to deny access to incident reports for no good reason, regardless of whether they may shed light on an unsolved case, reveal important trends in law enforcement, or possibly free an innocent person. For the sake of the criminal justice system and the public’s right to know, that practice must end — and soon.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law group at Prince Lobel Tye, LLP, in Boston.

Major errors at The New York Times destroy the premise of two stories

There have been two enormous mistakes in The New York Times this week — errors that completely undermined the premise of the stories.

1. On Monday, Lisa Friedman wrote that government scientists had surreptitiously given her a draft report on climate change because they were concerned that the Trump administration would suppress it. But as Erik Wemple of The Washington Post explained, the report had been publicly available for months, and was even parked at the Internet Archive.

2. On Wednesday, Adam Nagourney reported on an internecine battle among California Democrats that is supposed to tell us something about the struggle between the party’s progressive and establishment wings. It struck me as pretty thin gruel given that we learn both combatants in the bid for party chair, Eric Bauman and Kimberly Ellis, supported Hillary Clinton last year, although Bernie Sanders is supporting Ellis now.

But then we get to the bottom and see this: “An earlier version of this article misstated the candidate Kimberly Ellis supported in the Democratic primary race last year. It was Hillary Clinton, not Senator Bernie Sanders.”

Imagine reading this before the correction was made. It’s a completely different story. It’s not about the continued hostility between Clinton and Sanders supporters at all. As with the climate-change story, it’s the sort of article that might very well not have been published at all if the facts had been clear beforehand.

I know that quite a few copy editors lost their jobs at the Times recently. Could that have something to do with it? Maybe. But the Times still has a larger editing corps than any other paper. Moreover, these kinds of large, conceptual errors strike me as something that have been endemic at the Times for many years. I suspect it has more to do with the culture than the copy editing.

Sounds like a good topic for the public editor. Oh, wait. Never mind.

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Pence’s petulance undescores his tricky relationship with Trump

Mike Pence. Photo (cc) 2015 by Gage Skidmore.

Previously published at WGBHNews.org.

Few members of the Trump administration have carried themselves with more unctuous sycophancy than Mike Pence. “Thank you, Mr. President, and just the greatest privilege of my life is to serve as vice president to a president who’s keeping his word to the American people,” the former Indiana governor said at that North Korean-style cabinet meeting back in June. At joint public appearances, Pence gazes at President Trump with a mixture of admiration, gratitude, and sheer astonishment at finding himself just a heartbeat away from the presidency.

But now Trump and Pence may be on the outs. The proximate cause is a New York Times story over the weekend reporting the not especially earthshattering news that Pence is keeping his powder dry in case Trump does not run for re-election in 2020. Much of the article, by Jonathan Martin and Alexander Burns, concerns the 2020 ambitions of Republicans such as Ohio Gov. John Kasich, Nebraska Sen. Ben Sasse, and Arkansas Sen. Tom Cotton. But we also learn that Pence has been unusually active in boosting his political prospects, although he “has made no overt efforts to separate himself from the beleaguered president. He has kept up his relentless public praise and even in private is careful to bow to the president.”

This is all pretty unremarkable stuff. Pence himself, though, erupted as though he had been accused of mocking the size of Trump’s hands, calling the Times article“disgraceful and offensive to me, my family, and our entire team” as well as “categorically false.” As Chuck Todd of NBC News tweeted, “Sorta stunned that an obvious point from the NYT piece about a sitting VP’s own ambitions appears to be causing Team Pence such heartburn.”

What makes the Times article so sensitive, needless to say, is the nontrivial chance that Pence will be running for president in 2020 as the incumbent. Although it seems unlikely that Trump will be impeached and removed from office, the inexorable progress of special counsel Robert Mueller’s investigation may well yield the sort of information that could persuade Trump to disappear. It’s a prospect that no doubt gladdens the hearts of congressional Republicans even more than Democrats, since they would be rid of their rage-tweeting ruler and his record low approval ratings. A Pence presidency would give them a chance to start over.

Yet Bill Kristol, a prominent anti-Trump conservative, seems unimpressed with the vice president. Kristol stirred the pot after the Times story was published by tweeting, “It’s bold of Team Pence to plant the front-page NYT story on plans for 2020, then object vociferously. Multi-dimensional chess!” And when Times reporter Maggie Haberman noted that Pence’s over-the-top response would “make one think Pence had committed theft stead of fluffing own brand,” Kristol retorted, “Pence committed the crimes of 1) theft of spotlight from @POTUS and 2) suspicion of less than total subservience to @POTUS even in private.”

Even before the Times story revealed the extent of Pence’s politicking, the vice president’s standing with Trump may have been more fragile than we outsiders imagine. There is, of course, Trump’s one-way definition of loyalty: he demands total fealty and gives back nothing in return. But Pence has also shown that he is not immune to the scent of blood in the water. As the columnist Richard North Patterson observed in The Boston Globe, Pence — whom Patterson described as “an incompetent ideologue, an obsequious toady, and a self-serving schemer” — made it clear to everyone last fall that he was available for the drafting when it looked like the “Access Hollywood” tape might sink Trump’s campaign.

Thus for all the deference Pence has shown, Trump may regard him as someone who is no better than former chief of staff Reince Priebus, who, as head of the Republican Party, reportedly urged Trump to drop out after the tape was exposed by The Washington Post. As an elected official in his own right, Pence, unlike Priebus, can’t be fired by Trump. But that doesn’t mean Pence’s position is entirely safe.

For anyone of moderate or liberal views, a Pence presidency might be even worse than what we’ve got now. Pence is well regarded on Capitol Hill, especially by House Speaker Paul Ryan. He knows how to handle himself in public. And he is an extreme right-wing ideologue who, you can be sure, would stand a far better chance than Trump of rolling back years of progress on issues such as LGBTQ rights and reproductive choice. The Affordable Care Act would once again be in danger. (On the other hand, Trump would no longer have access to the nuclear codes — no small thing given his unstable behavior.)

If there was any doubt, the Times article reminds us that Pence is ambitious. It remains to be seen whether he is ambitious in the way vice presidents normally are or if he is aggressively trying to take advantage of Trump’s weak position. In either case, he’s not going away. Even if Trump wants him to.

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