The 2022 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Illustration by Meryl Brenner / GBH News

A Boston mayor who trampled on a religious group’s right to freedom of expression. A Worcester city manager who trampled on the public’s right to know about police misconduct. A New Hampshire state legislator who trampled on teachers’ rights by demanding that they take a “loyalty oath” promising not to teach their students about racism.

These are just a few of the winners of the 2022 New England Muzzle Awards.

This year is the 25th anniversary of the Muzzles, a Fourth of July roundup of outrages against freedom of speech and of the press in the six New England states.

Read the rest at GBH News.

Muzzle follow-up: Rhode Island Supreme Court strikes down ‘civil death’ law

Peter Neronha

A Rhode Island law that was the subject of a 2021 GBH News Muzzle Award has been struck down by that state’s Supreme Court.

The Associated Press reports that Rhode Island’s “civil death” law, under which anyone serving a life sentence was regarded as dead with respect to having access to the justice system, “deprives those persons imprisoned at the ACI for life of their right to bring civil actions in our state courts.” (The ACI is the Adult Correctional Institutions.) The bizarre law stated:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.

Last July I awarded a New England Muzzle to Rhode Island’s attorney general, Peter Neronha, a Democrat, for his overzealous defense of a law that didn’t exist in any other state. Among other things, Neronha argued that life in prison — or, for that matter, the death penalty — are more severe punishments than civil death yet pose no constitutional issues.

In fact, as the Rhode Island ACLU pointed out, there are punishments that many would regard as worse than life in prison, or even death. As the ACLU’s state executive director, Steven Brown, explained, civil death means that “an inmate … serving a life sentence could be waterboarded, beaten mercilessly by guards, or held in a cell and denied all food and water, but have no access to our state courts to challenge these egregious violations of his constitutional rights.”

In a press release, the Rhode Island ACLU hailed Wednesday’s decision as “an important victory for the principle that the courts should be open to all for redress.”

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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The ACLU at a crossroads

Social justice or free speech? The New York Times offers an in-depth look at the struggles inside the ACLU. My friend and occasional collaborator Harvey Silverglate is among those interviewed.

Federal appeals court legalizes secret recordings of police in Mass.

Photo (cc) 2010 by Thomas Hawk

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A federal appeals court has upheld the right to secretly record police officers in the performance of their public duties, but has declined to act similarly with respect to other government officials because they have a greater expectation of privacy.

The ruling, by the First Circuit Court of Appeals, essentially strikes down the Massachusetts wiretap law, also known as Section 99, as it pertains to police officers. According to an analysis by Michael Lambert, a First Amendment lawyer with the Boston firm of Prince Lobel, “The decision means that Massachusetts journalists and citizens can, openly or secretly, record police discharging their duties in public without fear of criminal charges under the state’s wiretap law.”

The ruling came in response to two separate cases, both filed in 2016. The case involving the police was brought by a pair of civil-rights activists, K. Eric Martin and René Pérez. The broader case was brought by Project Veritas, a right-wing organization known for making undercover recordings of liberal targets and often editing them deceptively. (For instance, see this backgrounder assembled by the American Federation of Teachers.)

The appeals court upheld 2018 rulings by U.S. District Court Judge Patti Saris. The Dec. 15 decision, by Judge David Barron (himself a former journalist, as Lambert notes), reads in part:

We conclude that, by holding that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces and by granting declaratory relief to the Martin Plaintiffs, the District Court properly accounted for the values of both privacy and accountability within our constitutional system. We further conclude that the District Court properly rejected Project Veritas’s First Amendment overbreadth challenge, in which the organization sought to invalidate the measure in its entirety, given the substantial protection for privacy that it provides in contexts far removed from those that concern the need to hold public officials accountable.

As Lambert observes, openly recording police officers who are performing their duties has been legal in Massachusetts since 2011 regardless of whether they have given their consent. Judge Barron’s decision now legalizes secret recordings of officers as well. The issue has drawn attention not just in Massachusetts but across the country as smartphones have made it increasingly easy for citizens to document police conduct and misconduct. The Black Lives Matter movement has been fueled in part by such videos — the best known example being the police killing of George Floyd earlier this year.

Matthew Segal, legal director of the ACLU of Massachusetts, which represented Martin and Pérez, said in a statement:

The right to record the police is a critical accountability tool. Amid a nationwide reckoning with police brutality and racial injustice, the Court has affirmed the right to secretly record police performing their pubic duties.

A final wrinkle worth noting: Retired Supreme Court Justice David Souter was among the three appeals court judges who presided.

Why the Carter verdict does not harm freedom of speech

I don’t often find myself in disagreement with the ACLU. But we part company in the case of Michelle Carter, the young woman who was found guilty of involuntary manslaughter for urging her boyfriend, Conrad Roy III, to follow through with his threats to commit suicide. Here’s what Matthew Segal, legal director of the ACLU of Massachusetts, has to say:

Mr. Roy’s death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution.

There is no law in Massachusetts making it a crime to encourage someone, or even to persuade someone, to commit suicide. Yet Ms. Carter has now been convicted of manslaughter, based on the prosecution’s theory that, as a 17-year-old girl, she literally killed Mr. Roy with her words. This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions.

The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death. If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved ones across the Commonwealth.

Although I don’t think the legal concept of incitement ever came up during the Carter trial, it makes for a good analogy. Over a number of decades, the concept of incitement to violence was refined and narrowed by the Supreme Court, starting with Oliver Wendell Holmes Jr.’s assertion in 1919 that you can’t falsely shout “fire” in a crowded theater. Finally, in Brandenburg v. Ohio (1969), we arrived at the standard we have today: Speech is not protected by the First Amendment and may be punished if it is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.” Anything that does not rise to that high level is protected, which is why Brandenburg is an important guarantee of free expression.

I am not a lawyer, so caveat emptor. But it seems to me that Carter’s texts to Roy were directed at inciting him to commit suicide and were likely to lead him to take his life. Yes, I know that this was not an incitement case involving mob violence. But I don’t see how the guilty verdict in the Carter case changes our understanding of what is protected speech and what isn’t. We are not less free today than we were before the verdict was rendered.

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Open government in Mass. moves to closer to reality

The following is a press release from the ACLU of Massachusetts.

BOSTON—In a pair of unanimous, bipartisan votes, the state House of Representatives and Senate today passed the first major reform of Massachusetts public records law in four decades, sending it to Governor Charlie Baker, who has 10 days to sign, veto, or let it become law without his signature. If signed into law by Governor Baker, the legislation would address widely criticized weaknesses in Massachusetts public records law, which make it hard for citizens to get information about how their government functions.

“This is a great day for open government,” said Carol Rose, executive director of the ACLU of Massachusetts. “We thank the House and the Senate for making public records reform a priority and for getting the job done. We also call on Governor Baker to do the right thing and sign the bill as soon as it reaches his desk.”

The bill would:

  • Set clear limits on how much money government agencies can charge for public records;
  • Set reasonable time frames for responses to public records requests;
  • Allow municipalities to request additional time for compliance and the ability to charge higher fees to cover reasonable costs;
  • Strengthen enforcement of the law by giving courts the ability to award attorney fees to those wrongly denied access to public records.

The Massachusetts Freedom of Information Alliance—a coalition of open-government groups—praised the House and its leadership for making transparency a significant legislative priority. The coalition urged Governor Charlie Baker to sign the legislation without delay and usher in a new era of openness in Massachusetts state government.

“A strong public records law is critical to democracy and our ability as citizens to hold government accountable,” said Pam Wilmot, executive director of Common Cause Massachusetts. “With today’s vote, the House and the Senate made a significant commitment to transparency and freedom of information, improving open government, and moving our state a huge step forward from near last in the nation. This reform is long overdue and we hope the Governor will sign it without delay.”

In November, the Center for Public Integrity released a report that gave the Commonwealth an “F” grade on public access to government information for the second time in a row. Dozens of organizations have advocated for comprehensive public records law reform, arguing that the law is among the weakest in the country and needs updating for the digital age. State lawmakers made their last substantive amendment to the law in 1973.

“This bill represents a significant step forward for transparency in Massachusetts,” said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It will do a lot to improve access to public records. We hope and expect Governor Baker will prove himself to be a transparency-minded Governor by signing it into law.”

“Massachusetts residents deserve a stronger public records law, and this bill offers many improvements. We look forward to the governor signing it into law and providing more opportunity to hold government officials accountable,” said Justin Silverman, executive director of the New England First Amendment Coalition.

The pending legislation advanced earlier in the week when a conference committee of six legislators reconciled earlier versions passed by the House and Senate. The bill passed by the House and Senate today includes provisions designed to reduce the cost of obtaining public records and ensure timely responses to information requests. In addition, by allowing courts to award attorney fees to those wrongly denied access to public information, the bill would bring Massachusetts into line with 47 other states. The new law would not make such fee awards mandatory, but would establish a presumption in favor of covering requesters’ legal costs when courts find the law has been violated. The bill also includes safety-valve mechanisms to enable municipalities to get extensions on compliance deadlines and to receive reasonable compensation when dealing with particularly complex, time-consuming requests.

The full bill, An Act to improve public records (now H.4333), can be found here: https://malegislature.gov/Document/Bill/189/House/H4333.pdf.

A journalist fights the power for public information

P.E. PVD HEADSHOT WEYBOSSET smallBy Philip Eil   

For more than three and a half years I’ve been fighting to access evidence from a trial that sent a man to prison for four consecutive life terms. The defendant in that case—Dr. Paul Volkman, the “Pill Mill Killer,” the “largest physician dispenser of Oxycodone in the US from 2003-2005”—went to college and medical school with my dad, and I’m trying to write a book about him.

Now, it might sound odd that I, or anyone in this country, would have to fight for access to trial evidence that’s already been shown in open court. Doesn’t the Sixth Amendment guarantee all citizens a public trial? Haven’t landmark court decisions established that trial evidence can’t be un-published? And, if all else fails, doesn’t the Freedom of Information Act (FOIA) offer transparency insurance? After all, no one administering the law with President Obama’s 2009 “presumption in favor of disclosure” memo in mind would withhold previously published trial evidence, would they?

The answer to each of these questions is “You would think so.” But more than four and a half years after Volkman’s trial ended (the verdict was delivered May 10, 2011, a date tattooed on my brain), the vast majority of the evidence hasn’t been released. Judges, clerks, and prosecutors have all denied my requests. And when I filed a FOIA request with the Department of Justice in February 2012, the events that ensued were, in the words of MuckRock, a “nightmare.” That’s why—with the help of the Rhode Island ACLU and pro bono attorneys Neal McNamara and Jessica Jewell from Nixon Peabody—I’m suing the Drug Enforcement Administration.

In a sense, my case revolves around a simple question: can the government seal off a trial—in this case, for reasons related to medical privacy—once the jury has been dismissed and the defendant hauled to prison? I say “No.” The government, apparently, says “Yes.”

And, for now, let’s stick with the theme of simplicity. Because, as this lawsuit trudges on, there’s really only one document you need to see. It’s a 62-page packet filed “for review and consideration by the Sixth Circuit Court of Appeals” by the Ohio US attorney’s office on February 19, 2013.

In February of 2013, Volkman was fighting to have his conviction overturned, while the Ohio US attorney (the office that had successfully prosecuted him) was fighting to make sure the conviction stuck. With this 62-page packet, prosecutors presented a curated selection—16 exhibits, out of more than 200 shown at trial—of their most powerful evidence. Unlike any of the other trial exhibits, the packet was uploaded to PACER, making it accessible to the public.

That’s worth repeating: by submitting this packet to the appellate court, prosecutors published trial evidence. And they did so with very few redactions. Only a handful of black bars appear in the packet to cover Social Security numbers and birthdays on death certificates, and—curiously—the last name of one of Volkman’s victims (but not three others) on prescription slips and medical-exam reports. Mostly, the trial exhibits are published in their pristine, un-redacted natural state.

Mind you, these are the same prescription slips, death certificates, and reports that were withheld or aggressively redacted when I asked the DOJ for them in 2012. And these are the same prescription slips, death certificates, and reports that the Rhode Island US attorney (which is handling the lawsuit for the DEA) withheld or aggressively redacted when the office attempted to settle my case with two new “releases” on July 29 and August 31, 2015.

Which brings me to the one thing to remember about my case. Even if you ignore the Sixth Amendment, pro-courtroom-transparency court decisions, and Obama’s “presumption in favor of disclosure” FOIA memo, the government’s stance in this case still doesn’t make any sense. Because, as the 62-page packet from 2013 shows, the government is currently defending a privacy line they’ve already broken.

Four and a half years is a long time to wait for the release of this trial evidence. And I’ve come to view my FOIA case as a symbol of a lot of things: bureaucratic incompetence; Obama-era bullying and intimidation of journalists; and the disturbing fact that the US government, in 2015, can’t live up to some of this country’s founding principles. But, as with so many governmental failures, this is also a story about wasted taxpayer dollars. After receiving my FOIA request in 2012, DEA employees spent untold hours painstakingly redacting pages of trial evidence that had already been shown in open court. (Six hundred seventy-four days passed between my first partial FOIA-response release in May 2013, and my last, in March 2015.) And, right now, it seems there are people in the Rhode Island US attorney’s office working to make sure this previously published evidence (a chunk of which was re-published, in 2013) doesn’t see the light of day.

These are not top-secret documents. This is evidence that sent a man to prison. This is evidence from a case that traveled all the way to the US Supreme Court. This is evidence that was presented in every US citizen’s name, since we were all plaintiffs in “the United States of America vs. Paul Volkman.” Welcome to the “most transparent administration in history.”

Philip Eil is a freelance journalist and former news editor at the now-closed Providence Phoenix. His work has appeared in publications including The Atlantic, Vice, Salon, Rhode Island Monthly, and the Jewish Daily Forward. Email him at philip dot edward dot eil at gmail dot com and find him on Twitter at @phileil.

Guest commentary: Reform public-records law now

The following statement was released Monday by the Massachusetts Freedom of Information Alliance.

The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.

Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.

MassFOIA commended the governor’s action but simultaneously called for legislative reform.

“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”

“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”

Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.

“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”

“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.

The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.

In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.

The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.

Specifically, the legislation would:

  • Promote access to records in electronic form.
  • Direct agencies to assign a “records access officer” to streamline responses to public records requests.
  • Lower costs for requesters and limit charges for redacting documents to withhold information.
  • Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
  • Extend the time for compliance from 10 to 15 days.
  • Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.

 

Cities and towns seek to derail public-records reform

A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.

On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.

Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.

The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

Hi Folks,

It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.

As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead.  In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.

So, please:

1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]

2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.

3) Keep your eyes open for updated talking points over the weekend.

Thanks for your support of this critical issue!

Best,

Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition