Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)
But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.
Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.
OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.
The SJC’s decision says in part:
We conclude that any order restricting OpenCourt’s ability to publish — by “streaming live” over the Internet, publicly archiving on the Web site or otherwise — existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.
OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.
John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.
What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.
Many police departments in Central Massachusetts violate the law when asked to produce public police-log records, according to an investigation by the Worcester Sunday Telegram. Some flat-out refused. Others demanded identification in violation of the law, and three even went so far as to run a database check on the person requesting the records, the paper reports.
“The law is clear,” the story begins. “Police departments must keep and update a daily log of their activities, reported crimes and arrests, and that log must be readily available to the public at no cost and with no questions asked.”
This interactive graphic provides a quick overview as to which police departments were in compliance and which weren’t.
Any of us who has worked in journalism knows that some police departments cooperate only with reporters they know and trust, despite the state public-records law, which requires them to produce records pertaining to incidents and people who’ve been arrested.
Police departments are not required to produce detailed incident reports about pending investigations.
Whenever I’ve sent students out to obtain police-log records, the results have been mixed. Boston Police, whose headquarters is a short walk from the Northeastern campus, was so accustomed to student requests that they’d form a virtual welcoming committee, giving them everything they needed before they were even asked. I eventually had to require that students visit other police departments — Boston was making it too easy.
But some police departments in Greater Boston were so uncooperative that my students were unable to complete the assignment unless they returned two or three times.
Media lawyer Jonathan Albano, a member of the board of directors of the Northeastern-affiliated New England First Amendment Coalition, tells the Telegram:
This shows why you need the public records law. People in those positions worry about if it’s all right or not to give someone this public information. After a while, they start to think of it as their information and that it’s their job to protect it.
The Telegram’s investigation also demonstrates the dangers of what happens when the police become a law unto themselves.
We may not have previously seen a social-media phenomenon quite like “Kony 2012,” the online video aimed at raising public awareness about Joseph Kony, the leader of the brutal Lord’s Resistance Army in Uganda. I saw it on Tuesday, urged on by my son. He was skeptical from the beginning, having seen this. Today, some 50 million views later, “Kony 2012” is on the front page of the New York Times.
You may be familiar with the criticism by now, which I will attempt summarize as follows:
It oversimplifies a complex situation.
Kony’s forces, which once terrorized Uganda, have dwindled to a few hundred, and have long since fled for parts unknown.
Invisible Children, the not-exactly-transparent nonprofit that made “Kony 2012,” is pushing for the U.S. to launch an ill-advised military action.
The film plays down the brutal nature of the current Ugandan government, which, among other things, is considering a measure calling for the death penalty for gay men. (A star of the film is U.S. Sen. James Inhofe, who has been accused of inadvertently helping to foment anti-gay hatred in Uganda.)
The underlying message of the video is that bringing Kony to justice is something white people must do for poor, helpless black people.
“While I’ve been waiting years for a spotlight to be shown on Kony, what Kony 2012 is all about is shining the spotlight on [filmmaker] Jason Russell,” writes my WGBH colleague Phillip Martin on Facebook. “This is indeed a great white hope form of self-aggrandizement, albeit whatever good intentions he has.”
Personally, I’d been going back and forth on “Kony 2012” until last night, when I ran across this lengthy blog post by Ethan Zuckerman, an Africa expert who is director of MIT’s Center for Civic Media as well as the co-founder of Global Voices Online, which has rounded up African reaction to the film. It’s exactly the sort of nuanced, deeply knowledgeable analysis I would expect from Zuckerman, and I urge you to read it. (If you haven’t seen “Kony 2012” yet, this will take you less time.)
There’s no question that “Kony 2012” will raise awareness, and it’s possible that it will even do some good. But it’s not entirely clear what the goal is, or for that matter should be.
Will Republican Sen. Scott Brown of Massachusetts win re-election this November? Or will he be defeated by his Democratic rival, Elizabeth Warren? The answer, clearly, is “yes.”
I’ve been thinking about writing this post for a while. Frank Phillips’ story in today’s Boston Globe on Democrats who are panicking over the latest polls seems like as good a hook as any, so here we go.
From the moment Warren announced her candidacy, I’ve been struck by the fever-pitch feel that has permeated the race. Not among ordinary voters, of course; they won’t tune in until after Labor Day. But political junkies are fully engaged, as you know if you dip into the Twitter streams at #masen and #mapoli.
It seems to me that we’ve got a race between two very good candidates. I think Warren is the best the Democrats could have hoped for — not just better than the unknowns and wannabes who were running before she got into the race, but better than any member of the state’s Democratic establishment, with the possible exception of Gov. Deval Patrick.
Warren is articulate, she’s an economic populist, she combines insider experience with outsider credentials (how many people have managed to piss off both Republicans and Treasury Secretary Timothy Geithner?) and she’s almost as pretty as Brown.
Elizabeth Warren
Nor has she made any major missteps to this point. Brown supporters have tried to make hay of her endorsement of the Occupy movement, but that’s not going to play. The repeated references to her as “Professor” Warren are kind of pathetic. Anti-intellectualism does not have the sort of appeal in Massachusetts that it does in, say, Texas.
But some Democrats seem surprised, at the very least, that Brown didn’t topple like a rotten tree at the first sign that he’d have a serious opponent. Those sentiments vastly underestimate Brown’s strengths. In fact, I can think of two only first-class political talents to emerge in Massachusetts in the post-Michael Dukakis era: Patrick and Brown. (If Mitt Romney didn’t have a zillion dollars, I’m not sure he could win a seat on the Belmont Board of Selectmen.)
Democrats ignore the reality that no one is really angry at Brown other than liberal activists. He was elected just a little more than two years ago, and the glow from his startling victory over state Attorney General Martha Coakley has not fully faded. Massachusetts voters have traditionally liked having a Republican in a statewide position, and with the governor’s office now in Democratic hands, Brown has that working for him as well. My sense is that a lot of voters are still rather pleased with themselves for their role in Brown’s win, and it’s going to take more than Warren’s just showing up to get them to change their minds.
Nor should anyone discount Brown’s political instincts, which are superb. Brown has been a master of not taking strong stands on divisive issues, leaving himself free to bend when it’s necessary for his survival as a Republican in an overwhelmingly Democratic state. It took a while, but he eventually came around to voting for the repeal of “don’t ask, don’t tell.” He was among the very few Republicans who voted in favor of financial regulation, although he also loses points for his role in weakening those regulations.
The outlier in Brown’s record is his staunch support for the Blunt amendment, which would undo President Obama’s compromise on birth-control coverage at colleges, hospitals and other secular employers owned by religious institutions. Although Brown’s stand doesn’t seem to have hurt him in the polls so far, I think those who argue his rising poll numbers reflect public support for Blunt are wrong. Again, people just aren’t paying attention yet.
Why did Brown do it? Who knows? Maybe he’s acting on principle. Maybe the Senate leadership believes it has let Brown stray from the reservation too often and demanded his fealty on this one. In the long run, Brown’s support for Blunt will probably hurt him at the margins, but it’s not likely to determine the outcome of the race.
So what will determine the outcome? My guess is turnout. If this weren’t a presidential-election year, Brown would probably be a shoo-in for re-election. But with Obama on the ballot, a lot of people in Massachusetts are going to come out on Election Day looking to vote a straight Democratic ticket. The likelihood that Romney will be Obama’s Republican opponent only makes matters worse for Brown. Romney is not popular here except among the state’s tiny band of Republicans.
Predictions are futile. But I would imagine that whoever wins, it’s going to be extremely close. My advice: Don’t sell Brown short. And chill out. It’s only March.
Photo of Scott Brown by Dan Kennedy. Photo of Elizabeth Warren by the U.S. Treasury Department via Wikimedia Commons.
The Massachusetts Legislature this week will consider, once again, whether journalists should be protected from subpoenas ordering them to give up their confidential sources or turn over unused notes, video footage and the like.
In an era defined by blogging, social media and citizen journalism, one of the key questions that comes up whenever shield laws are discussed is who should be covered. Many of us argue that it’s journalism, not journalists, that should be protected, and that if a lone blogger is able to convince a judge that she’s engaged in bona fide journalism, then she should be covered just as fully as someone who’s on staff at the Boston Globe.
Fortunately, the bill being considered this week appears to allow for exactly that. I’ve asked Ambrogi for clarification (he has since weighed in, below), but what I’m looking at is the definition of “news media,” which is described in the bill as follows (my emphasis):
[A]ny newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.
The bill specifies very strict protection for anonymous sources and less strict protection for unused notes, footage and other materials accumulated in the course of newsgathering but not actually used. That’s in accord with longstanding legal tradition, so no surprise there. There’s an exception “to prevent imminent and actual harm to public security from acts of terrorism” as well.
Ambrogi reports that Massachusetts is now just one of 10 states that does not have a shield law. But the state’s Supreme Judicial Court has recognized a limited right for reporters to protect their sources. In fact, the only state with no shield protection whatsoever is Wyoming.
By far the most significant gap is the lack of a federal shield law, compounded by the U.S. Supreme Court’s 1972 ruling in Branzburg v. Hayes that journalists do not have a constitutional right to protect their sources. That gap has been exploited by federal authorities in states where journalists would otherwise have shield protection — such as the cases of Jim Taricani in Rhode Island and Josh Wolf in California.
The bill being considered this week has come up before, and I don’t know whether there’s any more reason to think it will pass now than it has in previous years. Personally, I’m lukewarm on shield laws, since they can give an already-skeptical public reason to believe that the media are a privileged class.
But the Massachusetts bill appears to be carefully drafted, and would do no more than level the playing field with respect to most other states.
Instant update: I just heard from Ambrogi, who confirms that the bill would give citizen journalists a chance to argue that they should be entitled to shield-law protections as well — although he cautions that the word “business” might mean they have to be “at least trying to derive some income from the citizen journalism.”
Andrew Breitbart at the CPAC conference in Washington last month.
It’s a tribute to Andrew Breitbart’s skill at media manipulation that when word of his death started spreading around Twitter this morning, the first reaction many people had was that it was a hoax. Only after confirmation from the Los Angeles Times and other news organizations did people believe it was really true.
Breitbart was someone I kept maybe half an eye on, at best, so I don’t have a fully developed take on his career as a media provocateur and what it meant. He seemed to be someone of endless energy and pugnacity, which served him well in bringing down Anthony Weiner, but which proved an embarrassment with the deceptively edited ACORN and Shirley Sherrod videos.
Two people asked me today if Breitbart was “a journalist.” I think it shows how much the media environment has changed over the past decade that the question didn’t strike me as making much sense. He was a conservative activist and a showman, and one of the things he did was journalism, both good and bad. If you do journalism, are you a journalist? Does it matter?
I ran across three pieces today that I think are worth sharing.
The first is a remembrance by Josh Marshall, editor of the liberal website Talking Points Memo, who gets at Breitbart’s dual nature. Despite being well to the right of someone like Marshall, and exceedingly unpleasant on occasion, Breitbart had a certain way about him that people found compelling. Marshall writes:
There are some people who live for the fight. It’s something I try not to be part of. Yet it’s a big, punchy, vivid and outrageously honorable tradition in the American public square. I cannot think of many people who lived more out loud than he did, more in primary colors.
The second, a 2010 profile by Rebecca Mead of the New Yorker, was pretty much definitive at the time and holds up well. Despite its warts-and-all depiction of Breitbart, it comes across as fair, and Breitbart emerges as a not-entirely-unsympathetic character driven mainly by resentment and disdain for those he considers to be liberal elitists. And if that’s not a good description of what the modern conservative movement is all about, I don’t know what is.
Finally, apostate Republican David Frum has written a very tough assessment for the Daily Beast that acknowledges Breitbart “was by all accounts generous with time and advice, a loving husband and father, and a loyal friend,” but that is unstinting in its criticism of Breitbart’s brand of media activism. Frum writes:
Breitbart sometimes got stories right (Anthony Weiner). More often he got them wrong (Sherrod). He did not much care either way. Just as all is fair in a shooting war, so manipulation and deception are legitimate tools in a culture war. Breitbart used those tools without qualm or regret, and he inspired a cohort of young conservative journalists to do likewise.
Like Frum, I wonder if Breitbart might have grown if given the chance. His Weiner takedown surely must have showed him that getting it right brings a completely different level of respect and influence than does faking a video and getting caught.
Breitbart was only 43 years old and leaves behind four young children. Was he on his way to media respectability, or is that just wishful thinking? We’ll never know.
Photo (cc) by Gage Skidmore and republished here under a Creative Commons license. Some rights reserved.
One of the more fun things I got to do during my years at the Boston Phoenix was drive to Augusta one weekend in 1999 to meet Maine’s senators, Olympia Snowe and Susan Collins, at a motorcycle rally. I started thinking about that story following Snowe’s announcement that she won’t seek re-election.
My article, by the way, appeared in the debut issue of the Portland Phoenix, which is still going strong more than a dozen years later. When you visit Portland (one of my favorite cities), you should be sure to pick up a copy.
Snowe’s career harks back to a time when there was such a thing as liberal Republicans and conservative Democrats. Nonideological partisan politics had its shortcomings, but it did tend to minimize the gridlock and enmity that characterizes the national dialogue today.
Snowe’s announcement will also reduce the ranks of moderate New England Republican senators to just two: Collins and Scott Brown of Massachusetts. And that’s assuming Brown wins re-election this November against his Democratic challenger, Elizabeth Warren.
Kudos to David Carr of the New York Times for shining a light on an issue that doesn’t attract nearly the attention that it should: the Obama administration’s abuse of the Espionage Act, which in turn has led to a virtual war on journalism and free expression.
As Carr notes, the Espionage Act, approved in 1917 during the hysteria of World War I, was used three times before President Obama took office in 2009 — and six times during his presidency.
We live in a dangerous era, and there have been prosecutions with which it may be hard to disagree. Carr cites the case of Bradley Manning, who’s been charged with stealing national-security documents that are at the heart of the WikiLeaks disclosures.
But Carr also writes that leak prosecutions often seem to be aimed more at punishing people for embarrassing the government than for genuinely damaging national security. In a particularly ironic case, a former CIA officer named John Kiriakou has been charged with leaking the names of agents involved in interrogating terrorism suspects. Carr points out that “none of the individuals who engaged in or authorized the waterboarding of terror suspects have been prosecuted.”
(More about the Kiriakou case from the Reporters Committee for Freedom of the Press. Kiriakou has denied the charges.)
Kudos, too, to Jake Tapper of ABC News, whose confrontation with White House press secretary Jay Carney is the hook Carr uses to delve into the issue. A fuller account of Tapper and Carney’s exchange can be found here. Here’s Tapper responding to Carney’s praise for the journalist Marie Colvin, killed in Syria last week:
How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.
I suspect Obama and Attorney General Eric Holder have gotten a pass from many liberals because they believe a Republican president would be even worse on such matters. The fact is, though, that no president has been more aggressive than Obama in prosecuting suspected leakers.
And given the way the media work, it’s no surprise that they’ve said little, since the heart of what they do is respond to accusations. The storyline being promoted by Mitt Romney, Rick Santorum and Newt Gingrich is that Obama is weak on national security, so they’re certainly not going to criticize the president for being too tough on leakers. Thus, no story.
When the government wants to take suspected leakers to court, it inevitably demands that journalists reveal their confidential sources. There is no constitutionally recognized right for journalists to protect their sources, and no federal shield law, which means that such cases have a considerable chilling effect on tough reporting.
In 2006, “Frontline” interviewed Mark Corallo, who was director of public affairs for George W. Bush’s first attorney general, John Ashcroft. In this transcript, you’ll see that Corallo, with the support of Ashcroft — not generally thought of as a friend of the First Amendment — approved only one subpoena for a journalist out of “dozens” that were requested. Corallo continued:
I can’t tell you about that case. It was a national-security case. I believed, after long reflection, that it did put innocent people’s lives in danger, our allies, people in other countries who would be subject to terrorist attacks. The case was so egregious; it was such a horrible instance of unethical behavior by a journalist to boot.
I hope Tapper’s tough questioning and Carr’s column are the beginning of a genuine attempt to hold the Obama White House to account for its repressive policies.
Far-right Republican politico William Hudak’s recent announcement that he was abandoning a congressional race in order to get involved in a multi-level marketing operation was amusing enough. But the comedy factor increased exponentially Tuesday when Julie Manganis reported in the Salem News that Hudak’s new business partner had pleaded guilty to promoting prostitution.
Albert Muir and his then-wife, Manganis writes, ran a “health spa” in Branford, Conn., called Marlow’s, which was shut down by authorities in late 2009. Muir, who is also described as a professional poker player, is serving a five-year suspended sentence. He told the News that he pleaded guilty because he was afraid his then-wife, who was seeking a divorce, would send him up the river.
Here is Marcia Chambers’ Branford Eagle account of the police raid of Dec. 2, 2009, which came about in part because Marlow’s openly advertised its services on Craigslist. Chambers reported that police considered the spa to be “a full-scale prostitution ring.” Muir’s then-wife, Jazmin Benavides, is named in the article, but Muir is not, although Mark Zaretsky of the New Haven Register identified Muir as the co-owner. Chambers told me by email yesterday that Muir was arrested and charged in March 2010 after police conducted a follow-up investigation.
Hudak says he didn’t know nothin’ about nothin’. As Manganis notes, Hudak made much of the legal woes facing Democratic congressman John Tierney’s family when he ran against him two years ago. Tierney’s wife, Patrice Tierney, ended up doing time for her role in what federal authorities described as an offshore money-laundering operation run by her brother. But Hudak tells the News that “I think you’re really stretching” when he was asked whether he should have known about his new BFF’s legal woes.
When Hudak ran against Tierney in 2010, he achieved notoriety for putting up posters on his Boxford property comparing then-candidate Barack Obama to Osama bin Laden and for questioning whether Obama was born in the United States — although he denied that he actually believed Obama was not an American citizen.
Hudak also claimed the day after Scott Brown’s victory over Martha Coakley in the 2010 U.S. Senate special election that Brown had endorsed him in the Republican primary. Brown’s office denied it, but then endorsed Hudak over Tierney that fall.
Unfortunately for Tierney, he won’t get to run against Hudak again. This time, the leading candidate for the Republican nomination is former state senator Richard Tisei of Wakefield, who was Charlie Baker’s running mate in the gubernatorial election in 2010.
Tisei is a smart, personable moderate. Combined with Tierney’s family issues, the North Shore probably represents the Republicans’ best chance to pick up a congressional seat in Massachusetts this fall.
One of the more fun things I got to do during my years at the Boston Phoenix was drive to Augusta one weekend in 1999 to meet Maine’s senators, Olympia Snowe and Susan Collins, at a motorcycle rally. I started thinking about that story following 
