Media Nation

Four years ago I gave the Massachusetts Department of Education one of the Phoenix’s annual Muzzle Awards (scroll down to second item), arguing that its decision to prevent a prominent critic of high-stakes testing from giving a speech was an abridgement of his First Amendment rights.

Yesterday, according to this Boston Globe story, Superior Court Judge Hiller Zobel agreed, ruling that Alfie Kohn‘s rights were violated under both the U.S. Constitution and the Massachusetts Civil Rights Act. Zobel wrote: “The record makes clear that the government was attempting to dictate what Mr. Kohn could say and what his prospective listeners could hear.”

The lawsuit on Kohn’s behalf was brought by the ACLU of Massachusetts, which issued a statement yesterday. Here is the complete text:

BOSTON (August 1, 2006) — The Massachusetts Department of Education (DOE) violated the United States Constitution when it prevented a critic of the Massachusetts Comprehensive Assessment System (MCAS) standardized test from speaking at a public education conference because it did not like his viewpoint, State Superior Court Judge Hiller Zobel has ruled. The case was filed by the American Civil Liberties Union (ACLU) of Massachusetts and cooperating attorneys at Boston’s Wolf, Greenfield & Sacks, P.C. on behalf of Alfie Kohn, a nationally known critic of high-stakes testing. Judge Zobel’s decision was entered on July 28 but released today.

Kohn, author of “The Case Against Standardized Testing: Raising the Scores, Ruining the Schools,” had been invited to deliver a keynote address at a May 2001 public education conference in Northampton, Massachusetts. The conference was sponsored by the DOE, area colleges including Smith, Mount Holyoke and University of Massachusetts-Amherst, and more than a dozen community groups committed to improving high school education in Massachusetts.

Although speakers’ fees, including those of Kohn, were to be paid by private funds, Susan Miller Barker of the DOE ordered shortly before the conference began that Kohn be barred from delivering the keynote. In an e-mail uncovered during the lawsuit and specifically cited in the Court’s decision, Barker wrote “It was stupid … to use state funds in a way … diametrically opposed to the state’s and the board of ed’s legislative and policy agenda.”

The lawsuit was filed on behalf of Kohn and attendees at the conference who were denied the opportunity to hear him. The Court ruled that, by preventing Kohn from speaking because of his viewpoint, the DOE violated the federal Constitution and the Massachusetts Civil Rights Act.

“Here, the record makes clear that the government (through the DOE) was attempting to dictate what Mr. Kohn could say and what his prospective listeners could hear,” states Judge Zobel’s written opinion. “A person in Mr. Kohn’s position has a right to be heard without government interference, and people in the position of the other plaintiffs have a right to hear him. The First Amendment ‘necessarily protects the right to receive information.’ “

In response to the ruling, Mr. Kohn said, “It is gratifying to have the Court confirm what we knew — that the Department of Education is so committed to its agenda of high-stakes testing that it will violate the Constitution to silence those who disagree.”

Kohn and the citizen plaintiffs were represented by Boston attorneys Michael Rader and Michael Albert of Wolf, Greenfield & Sacks, who acted as cooperating attorneys with the American Civil Liberties Union of Massachusetts. ACLUM staff attorneys Sarah Wunsch and William Newman also were co-counsel for the plaintiffs.

“The Court has put the Department of Education on notice that its political preferences must never again take precedence over the First Amendment,” said Rader.

The Court entered a declaratory judgment for the plaintiffs and ordered the parties to submit additional papers concerning the form of the final judgment within 14 days.

A copy of Zobel’s decision can be found here (PDF).

Media Nation’s advice to Lt. Gov. Kerry Healey: Drop this, if Mitt will let you. Censorship is always wrong. The Kohn case hasn’t gotten much attention. But if you fight it, it’s yours — and folks might start to notice.

Not that it should be any surprise, but Christopher Rowland’s take on Greater Boston’s newest newspaper behemoth is pretty chilling for anyone who cares about community journalism.

Writing in the Boston Globe, Rowland reports that Fairport, N.Y-based GateHouse Media — which, earlier this year, paid $410 million for the Boston Herald’s Community Newspaper Co. (CNC) as well as the Patriot Ledger of Quincy, the Enterprise of Brockton and those two papers’ affiliated MPG weeklies — has been built on a mountain of debt.

Boston University’s Lou Ureneck tells Rowland:

They’ve been piling up debt in order to grow. The danger from a public point of view is that the debt burden gets so high that the company begins to drastically reduce its expenditures on the coverage of news.

On Saturday, the Herald’s Jesse Noyes reported that GateHouse would likely cut jobs as it consolidates operations on the South Shore. (The Herald continues to have a content-sharing arrangement with its former CNC subsidiary.)

There have been suggestions that Kirk Davis, the chief executive for GateHouse’s 100-plus papers in Eastern Massachusetts, sees Web-based community journalism as the future. Wicked Local, a Plymouth site started by the Ledger/Enterprise chain before its acquisition by GateHouse, is seen as a model.

Wicked Local is indeed pretty intriguing. But there is no substitute for investing in local reporting.

To be sure, no one can blame GateHouse for paring down its overlapping operations on the South Shore, where in some towns the company now finds itself owning competing weeklies. Nothing terrible has happened yet. The company is also going public, which will allow it to raise investment money.

But this is an experiment in corporate giantism at the local level that bears close scrutiny.

Nicholas Lemann writes a thoughtful, measured article in the New Yorker this week on the rise of citizen journalism. He quotes the self-promoting buzz machine himself, Jeff Jarvis, at his most ludicrously nasty. And, naturally, Jarvis responds with a variation of his favorite theme: Lemann just doesn’t get it.

That said, I’m going to assign Lemann’s piece and Jarvis’ response to my “Journalism of the Web” students this fall. Lemann, a veteran journalist, is dean of the Columbia Graduate School of Journalism, and what he has to say is therefore by definition important, even when he’s wrong. (I don’t think he is.)

Jarvis’ riposte is predictable and tiresome, but he still manages to score a few points.

Again: Why does anyone ever pitch to David Ortiz with the game on the line? We can only be glad that they do. Yes, Manny’s a terrific clutch hitter. But I’d rather take my chances with him than Ortiz. Wouldn’t you?

The Wikipedia may have some credibility problems. But its anonymous contributors have certainly kept the online encyclopedia up to date on the controversial term “tar baby”: Gov. Mitt Romney’s weekend faux pas has already been memorialized.

Is “tar baby” a racist term? Certainly some people think so, although there seems to be enough haziness that Romney deserves the benefit of the doubt. The Globe plays down the reaction to Romney’s remarks, relegating it to the lower-right-hand corner of the City & Region front. The Herald goes nuts, blowing out page one with a huge headline that reads, “THAT’S OFFENSIVE.”

Yet the definition of “tar baby” provided by the American Heritage Dictionary suggests no racial overtones, simply calling it “A situation or problem from which it is virtually impossible to disentangle oneself” — which is the connotation Romney was trying to convey in referring to the Big Dig.

The Encyclopedia Britannica describes a tar baby as a:

sticky tar doll, the central figure in black American folktales popularized in written literature by the American author Joel Chandler Harris. Harris’ “Tar-Baby” (1879), one of the animal tales told by the character Uncle Remus, is but one example of numerous African-derived tales featuring the use of a wax, gum, or rubber figure to trap a rascal.

We’re getting closer here, but the offensiveness has still not been established.

Perhaps the best explanation is that the term has taken on an offensive glow over time. The Wikipedia, for instance, says, “The term may also carry a negative connotation. It has been used as a derogatory term for dark skinned people (such as African Americans in the United States or Maoris in New Zealand). It can also refer to an especially dark skinned black person.”

Toni Morrison, who wrote a novel called “Tar Baby,” tells the Globe, “How it became a racial epithet, I don’t know. It was my attempt to rescue the phrase from its low meaning. I wanted to annihilate the connotation and return the meaning to its origins. Apparently, I haven’t succeeded.”

No, she hasn’t.

I don’t know whether Romney was speaking off the cuff, but if he was reading prepared remarks, well, shame on his staff. It was only a couple of months ago that White House press secretary Tony Snow took some heat for using the phrase “tar baby.” So it’s not as if this was a complete unknown.

Still, I’m inclined to give Romney a pass. Unless he says it again.

When did editors at the Boston Globe know they might have a problem with a memo purportedly written in 1999 by a Big Dig safety officer named John Keaveney? Perhaps as early as Thursday. The memo — which warned that part of the tunnel ceiling could collapse — appeared to be a significant advance when the Globe’s Sean Murphy broke the story a day earlier.

According to this Thursday article, though, Slate’s Timothy Noah asked the Globe for a copy of the memo for his “Hot Document” column and was turned down. Noah writes:

The Globe, unfortunately, has published only excerpts of the two-page memo. “We are not releasing the Keveaney memo now,” Carolyn Ryan, the Globe‘s assistant managing editor for metropolitan news, e-mailed me after the article’s author, Sean P. Murphy, directed me her way. The paper “may [release it] in the future.” Ryan did not answer my followup e-mail asking why the Globe is witholding the memo.

Today, both the Globe’s Murphy and the Boston Herald’s Casey Ross and Dave Wedge report that Keaveney is being questioned to determine whether his memo was really a recently penned exercise in ex-post-facto butt-covering.

Among other things, it appears that Keaveney, who worked for the contractor Modern Continental, didn’t get his timing straight: He claimed to have observed problems with drill holes before the work had actually been done. Whoops.

Dan Kennedy invited me to guest blog on Media Nation today. Since I’m a Tour de France fanatic, he asked me for my reactions to the news that Tour de France champ Floyd Landis apparently tested positive for testosterone, a performance-enhancing drug, during this year’s tour.

For me, the biggest surprise out of all the media coverage has been learning that the elite athlete had consumed “moderate” amounts of beer and whiskey the night after his flame-out in Alps in Stage 16 when he dropped from first place to 11th and lost about 10 minutes on the new leaders. The Boston Globe reports, “He thought his chances of winning the Tour were slim and was looking for ‘a way to get through the night.’”

Jack Daniel’s? Whatever it takes, I guess.

Although, as we’re learning now, that may not have been all that it took to get Floyd through the night. He may very well have chased his chaser with a testosterone patch.

The collapse — or “bonk” in athletic performance parlance — was painful to watch. Floyd literally ran out of gas. It was evidence, ironically, that this year’s tour was the cleanest it’s been in years. Three-time Tour de France winner Greg LeMond, who’s been outspoken about the need to clean up the sport, told The Guardian that he thought the riders this year were honest: “Riders looked tired, they had bad days. For years you never saw any suffering in the riders.”

Did Floyd cheat? The Boston Globe quotes two experts who say that an athlete trying to recover from bonking the way Floyd did would not have turned to testosterone for help:

However, two leading physicians and crusaders in anti-doping circles deplored the release of the damaging information before the second analysis. They added that it would have been nonsensical for Landis to use testosterone as an instant fix.

An elite rider who needed to perform well in a climbing stage as Landis did would be likely to turn to stimulants or blood-boosting techniques such as erythropoietin injections to improve oxygen processing capability, rather than using a strength-building substance like testosterone, they said.

“Something seems a little smelly here,” said Dr. Charles Yesalis, a Penn State professor emeritus of exercise and sport science and nationally recognized expert on steroid use. “Testosterone is a training drug, not a competition drug. It doesn’t act that quickly. It’s not going to change your life in a day or a week.

“I feel in an odd position defending any Tour de France rider, but if you wanted to make up eight minutes, you’d blood-dope.”

His view was backed by Dr. Gary Wadler of New York University, who helped craft the current WADA code. “You don’t take anabolic steroids in the morning and race in the afternoon,” Wadler said. “It takes many weeks to get benefits from them. There’s no good evidence that they enhance the aerobic system, although they do shorten recovery time and make you more aggressive and assertive. This makes no sense pharmaceutically.”

But CyclingNews.com has this from German doctor Kurt Moosburger (though the interview took place before news of Floyd’s positive test result and he was not talking about Floyd):

In a frank interview, Moosburger pointed to the average speeds of modern professional races, especially hard tours. “The average in last year’s Tour was 41 kilometres per hour – that is incredible. You can do a hard Alpine stage without doping. But after that, the muscles are exhausted. You need – depending on your training conditions – up to three days in order to regenerate.”

To help recover, testosterone and human growth hormone can be used. “Both are made by the body and are therefore natural substances,” he said. “They help to build
muscle as well as in muscle recovery.”

Dr Moosburger explained how it was done. “You put a standard testosterone patch that is used for male hormone replacement therapy on your scrotum and leave it there for about six hours. The small dose is not sufficient to produce a positive urine result in the doping test, but the body actually recovers faster.”

I’m a Tour de France fan thanks to Lance Armstrong and the OLN Network. Every July for the last seven years, my days have revolved around watching the Tour. Like many, my favorite stage is L’Alpe d’Huez, an insane ride up a mountain so steep that it’s categorized as “beyond classification.” It’s the stage Lance Armstrong dropped German rider Jan Ullrich on in 2001 with what’s now remembered as “the look.” The two were riding head to head on the final part of the climb when Armstrong surged ahead. Instead of just sprinting away without notice, Armstrong arrogantly telegraphed his move by looking directly at Ullrich as if to say: “You coming with me?” And then he took off. Ullrich never recovered. Ullrich, of course, was a favorite to win this year’s Tour until he, along with a bunch of other riders, was booted out of the race under suspicion that he was using performance-enhancing drugs.

I thought this year’s race, without Armstrong, wouldn’t be that exciting to watch. I was wrong. This was the best Tour I’ve ever seen. It was impossible to predict what was going to happen from day to day. The race leader changed from Stage to Stage and, as LeMond remarked, the riders just seemed more human this year. As for now infamous Stage 17, breathlessly described as an “epic” performance by everyone who saw it? It was all that and more.

I hate to think that Floyd cheated. He’s such an appealing character. Check out Outside Magazine’s profile of him from its July issue (Z-man refers to professional rider Dave Zabriskie, who is a close friend of Landis’s):

Landis begins our visit by showing me something on his computer: an image of his grimacing face superimposed on the heavily muscled body of an ax-wielding maniac. Beneath the image, in stylish typescript, are the words I’M A HOMO.

“I e-mailed this to Lance and Z-Man and my wife,” Landis says, smiling hugely. “Z-Man and my wife got right back to me—they thought it was pretty funny. I never heard back from Lance, though.”

“I wonder why?” Z-Man asks, deadpan.

We’ll probably never know if Landis cheated. But if he did, I want him to come clean about it, like world championship rider David Millar. Drugs aren’t going to kill the sport. After all, if that were the case, it would have happened by now. But there are consequences. The German public broadcast network, which airs the Tour de France annually, is rethinking that move: “We signed a broadcasting contract for a sporting event, not a show demonstrating the performances of the pharmaceutical industry,” ZDF editor-in-chief Nikolaus Brender said. “We are going to think about our future as broadcaster and maybe refuse to broadcast this event.”

I’m sure I’ll watch again next year. It’s become a July tradition. But it won’t be with nearly the same excitement I felt in watching this year’s race.

My latest “Mass. Media” column in CommonWealth Magazine focuses on WAVM Radio, a true community resource that was nearly driven off the air last year.

Based at Maynard High School and run almost entirely by students, the station almost went under when its license was preliminarily awarded to a religious broadcaster that had filed a challenge with the Federal Communications Commission. To make matters worse, the station’s longtime faculty adviser was arrested and charged with sexually abusing several of his former students. But parents and students pulled together and saved their station.

Pending final approval by the FCC, it looks like WAVM is here to stay — and with a stronger signal, thanks to its unique partnership with WUMB Radio of UMass Boston.

Did the Big Dig claim its second victim this week?

Yesterday the Boston Herald weighed in with an exclusive: a report by Michele McPhee, O’Ryan Johnson and Casey Ross that a 64-year-old man who’d suffered a heart attack died in an ambulance that was stuck in gridlocked traffic on Wednesday. The Herald’s lead:

An ambulance racing to get a heart attack victim to the hospital was snagged in Big Dig tunnel gridlock, turning what should have been a four-minute trip into a desperate 24-minute ordeal that ended with the man’s death, public safety and transportation sources said.

It was a nice hit for the Herald, showing that the tabloid is still in the game even though the much-larger Boston Globe, smelling Pulitzer, has been flooding the zone. (Media Nation: Your first stop for hoary clichés!)

Today the Herald follows up and the Globe splashes in. Among other things, we learn that the victim, Bruce Olsen, was a 64- or 65-year-old former Norfolk County commissioner (why do the papers never seem to agree?) who had recently been arrested in Florida on charges of selling marijuana. And you will not be surprised to learn that the two accounts differ on the importance of yesterday’s story.

Each paper makes its case on the basis of quotes by Tom Tinlin, acting commissioner of the Boston Transportation Department. In the Herald story, by McPhee, Tinlin says:

When you have an event like this, even though you know you did everything right, there is a real personal sense of frustration. Everyone understands how gravely ill this man was, but there is a real desire to make sure we do everything we can to make sure traffic flows in a safe manner and to make sure emergency vehicles have the access they need.

Nobody wants anything like this to happen again.

Here, on the other hand, is Tinlin talking to the Globe’s Raja Mishra:

Any time there’s a loss of life, it’s a tragedy, but it’s kind of a stretch to attribute this to the traffic situation. The plan worked that day.

Well, now. What are we to think? The Herald never directly asserts that Olsen died because of the traffic delay. In fact, a modern ambulance staffed by well-trained paramedics can be as good a place to be treated for a heart attack as a hospital emergency room — and, as McPhee reports, officials say they actually pulled over twice so they could concentrate on treating Olsen, thus adding to the delay.

But is there any question that Olsen was treated differently because of Big Dig-related traffic delays? Not really. It’s a serious enough situation that Mayor Tom Menino has ordered an investigation.

Bottom line: Even though Olsen should have arrived at the hospital sooner than he did, he almost certainly didn’t die because of the Big Dig. But unless the traffic problem is solved soon (unlikely, to say the least), someone will.

Several Media Nation readers have taken some pleasure in Bronson Arroyo’s recent slump. For example, Mike writes, “Over his past seven starts, Lover Boy Arroyo is 0-4 with a 4.79 ERA. Why can’t we get players like that?”

Let’s leave aside the fact that Wily Mo Peña is rehabbing from surgery for an injury he suffered before coming to the Red Sox, that David Wells (at least until Monday) and Matt Clement have contributed zippo, and that Tim Wakefield is on the disabled list. Instead, let’s ask: How bad is Arroyo’s slump?

Arroyo got off to a blistering start against the weaker National League. He’s currently 9-7 with a 3.20 ERA. He’s probably on a pace to turn in his usual performance: 14 or so wins, with an ERA of 4.00.

And yes, it’s true that he hasn’t won since June 19. But consider his last 10 starts. What do we find?

• Six of those were “quality starts” — that is, six or more innings with three or fewer earned runs. A seventh was borderline — four earned runs in seven innings.
• He stunk out the joint yesterday against Houston. But in his two starts before that, he appeared to be coming out of his slump: 15 innings and two earned runs, for two no-decisions that easily could have been wins.
• His ERA for those 10 starts is 4.17. That’s not half-bad in this hitter’s era. And if you overlook yesterday’s doozy, his ERA for the first nine of those starts is a very respectable 3.59.

This is not a guy whose wheels have fallen off.

The Sox have played incredibly well up to this point. How much better might they be playing — and how much better might they be suited for the post-season — if Arroyo were filling one of the two spots at the back of the rotation?