Andrea Campbell – Media Nation

In a lawsuit against Meta, the state’s highest court will rule on the limits of Section 230

Attorney General Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

Section 230 of the Communications Decency Act of 1996 protects website owners from liability over third-party content. The classic example would be an anonymous commenter who libels someone. The offended party would be able to sue the commenter but not the publishing platform, although the platform might be required to turn over information that would help identify the commenter.

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But where is the line between passively hosting third-party content and activity promoting certain types of material in order to boost engagement and, thus, profitability? That question will go before the Massachusetts Supreme Judicial Court on Friday, reports Jennifer Smith of CommonWealth Beacon.

At issue is a lawsuit brought against Meta by 42 state attorneys general, including Andrea Campbell of Massachusetts. Meta operates Facebook, Instagram, Threads and other social media platforms, and it has long been criticized for using algorithms and other tactics that keep users hooked on content that, in some cases, provokes anger and depression, even suicide. Smith writes:

The Massachusetts complaint alleges that Meta violated state consumer protection law and created a public nuisance by deliberately designing Instagram with features like infinite scroll, autoplay, push notifications, and “like” buttons to addict young users, then falsely represented the platform’s safety to the public. The company has also been reckless with age verification, the AG argues, and allowed children under 13 years old to access its content.

Meta and its allies counter that Section 230 protects not just the third-party content they host but also how Facebook et al. display that content to its users.

In an accompanying opinion piece, attorney Megan Iorio of the Electronic Privacy Information Center, computer scientist Laura Edelson of Northeastern University and policy analyst Yaël Eisenstat of Cybersecurity for Democracy argue that Section 230 was not designed to protect website operators from putting their thumbs on the scales to favor one type of third-party content over another. As they put it in describing the amicus brief they have filed:

Our brief explains how the platform features at the heart of the Commonwealth’s case — things like infinite scroll, autoplay, the timing and batching of push notifications, and other tactics borrowed from the gambling industry — have nothing to do with content moderation; they are designed to elicit a behavior on the part of the user that furthers the company’s own business goals.

As Smith makes clear, this is a long and complex legal action, and the SJC is being asked to rule only on the narrow question of whether Campbell can move ahead with the lawsuit to which she has lent the state’s support. (Double disclosure: I am a member of CommonWealth Beacon’s editorial advisory aboard as well as a fellow Northeastern professor.)

I’ve long argued (as I did in this GBH News commentary from 2020) that, just as a matter of logic, favoring some types of content over others is a publishing activity that goes beyond the mere passive hosting of third-party content, and thus website operators should be liable for whatever harm those decisions create. That argument has not found much support in the courts, however. It will be interesting to see how this plays out.

A second Muzzle Award to the Mystic Valley charter school — this time over a public records dispute

Imagine, if you will, a public school, supported by taxpayer dollars, claiming that it’s a private corporation and doesn’t have to comply with the state’s public records law. It is absurd on the face of it. Yet that’s what the Mystic Valley Regional Charter School is arguing in a case before the Supreme Judicial Court.

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According to an account by Jennifer Smith in CommonWealth Beacon, at least two of the justices appeared to be unimpressed by the Malden-based school’s claims when the case was argued at a recent hearing.

“You’re in real trouble,” Justice Scott Kafker told Charles Waters, a lawyer for the school, explaining, “It quacks like a duck, it waddles like a duck, it paddles like a duck.” Added Justice Dalia Wendlandt:

I understand charter schools were created to be independent in certain ways, to foster innovation in education and have the ability to do that in a way that the average public school does not. Good. But that doesn’t carry you to the argument that they’re not subject to the public record law.

At issue are some 10 instances in which public records were sought by a Facebook-based local news organization called the Malden News Network, Commonwealth Transparency and Malden mayoral candidate Lissette Alvarado. Smith reports that the requested information includes “corporate statements, contracts, ledgers, lease records, conflict of interest disclosures filed by board members, payments made to employees or professional services, and confidentiality and non-disclosure agreements.”

The case dates back to mid-2023, when state Attorney General Andrea Campbell filed a legal action against the school to force it to comply with the public records law. For fighting so stubbornly to conduct the public’s business behind closed doors, the Mystic Valley school has earned a New England Muzzle Award — its second. In 2017, I awarded a Muzzle to the school for discriminating against Black students by banning long braids and dreads. In 2022, the school sent a female Muslim student home because she was wearing a hijab in violation of the student dress code.

Despite the school’s reputation for academic excellence, there is clearly a culture problem that needs to be addressed.

According to Smith’s report in CommonWealth Beacon, Mystic Valley is claiming that it’s not subject to the public records law because “Charter schools, in their view, are public schools that are structured and treated in some ways more like corporations.” Among those disagreeing is the Massachusetts Charter Public School Association. Then again, Mystic Valley is one of just three charter schools that are not members of that organization.

In an editorial (sub. req.) calling for the SJC to rule against Mystic Valley, The Boston Globe observes that the school has already lost in decisions rendered by the state supervisor of records, the attorney general and a Superior Court judge. The editorial concludes: “Charter schools have been a great asset to Massachusetts families; indeed, Mystic Valley has been ranked as one of the best schools in the state. But that’s not the issue here. The issue is that the public has a right to know how their tax dollars are being spent.”

AG Campbell boosts free speech for electeds, while an anti-trans shirt goes to court

A past winner of a New England Muzzle Award is in the news, while a more ambiguous case is making its way through the federal courts.

First, Massachusetts Attorney General Andrea Campbell recently issued guidance stating that local elected officials have no fear of violating the state’s open meeting law if they take part in re-election activities such as debates or candidate forums where they discuss pending municipal business. Campbell’s decision follows a ruling by our Muzzle winner, Waltham City Solicitor John Cervone, that such activities would be “potentially problematic,” raising the specter that officials running for re-election would be barred from any substantive discussion of local issues.

Campbell’s guidance was hailed in a Boston Globe editorial, which noted that a similar situation had arisen in Newton. The editorial observed that Campbell gave her blessing even to situations at which a quorum of officials are present (for instance, three members of a five-member selectboard) “as long as they address their answers to the public, not to each other.” Campbell’s guidance reads in part:

The Open Meeting Law does not restrict an individual’s right to make comments to the general public, particularly as a candidate for office. Rather, it restricts communication between or among a quorum of a public body outside of a meeting; thus, the intent of the public official is an important consideration.

The Waltham and Newton restrictions were absurd, and Campbell was right to set them aside.

Second, Liam Morrison of Middleborough, Massachusetts, who as a seventh-grade student last year was banned from wearing an anti-transgender T-shirt to school, has taken his case to the U.S. Court of Appeals for the First Circuit after losing his bid to overturn the ban in federal district court. Morrison wore a shirt that said “There Are Only Two Genders.” And when that didn’t pass muster, he returned to school with a T-shirt that said “There Are [Censored] Genders.” That earned him a trip back home as well.

According to a report by Reuters, the appeals court seemed unimpressed with Morrison’s free speech argument at a recent hearing. Here’s part of the Reuters article:

U.S. Circuit Judge Lara Montecalvo contrasted the shirt with a brochure handed out by students expressing a particular message, saying unlike those pieces of paper, a student could not throw away the shirt that Morrison was wearing.

“A T-shirt that is worn all day is worn all day,” she said. “You have to look at it, you have to read it.”

Deborah Ecker, a lawyer for the Middleborough School Committee, said the school officials’ actions were motivated by concern for the mental health of LGBTQ students, “who are captive in this classroom looking at it.”

Boston Globe columnist Jeff Jacoby sides firmly with Morrison, writing:

In court filings, Middleborough’s lawyers argue that the school was entitled to suppress Morrison’s message out of concern that it could have led to “disruption.” Yet contrary messages are permitted. No discipline was imposed when a student came to class in a “He she they, it’s all okay” T-shirt. School administrators cannot have it both ways, allowing students to express the popular side of a debatable issue but silencing those who disagree because their opinion might provoke an angry reaction. The First Amendment does not bow to the heckler’s veto.

My own opinion is that this is not as simple as Jacoby makes it seem. As Jacoby himself notes, public school students have limited free speech rights when they are on school grounds. And though there’s a certain logic to the either/or choice Jacoby presents, it doesn’t hold up to closer scrutiny. An anti-LGBTQ message expresses animosity toward specific people, including fellow students whose orientation is something other than he or she. A pro-LGBTQ message affirms everyone’s humanity without — and this is the key — expressing any animosity toward people like Morrison who hold a different viewpoint.

Given that difference, it seems to me that Middleborough school officials got it right. Based on the Reuters report, it sounds like the appeals court is likely to agree when it issues its ruling.

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The Mystic Valley Charter School, winner of a 2017 Muzzle, is back to its old tricks

The Mystic Valley Regional Charter School — recipient of one of the all-time most outrageous New England Muzzle Awards back in 2017 — is in trouble once again, this time for its insistence on conducting the public’s business behind closed doors. Adam Gaffin of Universal Hub reports that state Attorney General Andrea Campbell’s office has asked a judge to order that the taxpayer-funded school produce public documents it has refused to hand over despite requests at the local level as well as repeated demands by Secretary of State Bill Galvin.

🗽The New England Muzzles🗽

School officials claim they do not have to comply because Mystic Valley, based in Malden, doesn’t meet the definition of a “public school,” even though state law specifically describes charter schools as such. In any case, they say they won’t produce the records until a judge orders them to do so, notwithstanding the fact that the state public records law empowers the secretary of state to enforce the law.

The records, sought by Malden News Network, a local journalism outlet; Commonwealth Transparency, an advocacy group; and Malden mayoral candidate Lissette Alvarado cover a wide range of issues, including payroll, contracts, conflicts of interest, accountings of school income, copies of emails, and documents regarding Boston Globe stories about the school.

Now, to get back to that 2017 Muzzle Award from GBH News. During the 2016-’17 school year, Mystic Valley administrators began enforcing a dress-code prohibition against hair extensions, worn most often by Black female students. After parents complained about the clearly racist policy, school officials doubled down, leading to reporting by The Boston Globe and other news organizations. Yet the school refused to back down until then-Attorney General Maura Healey intervened.

That stiff-necked refusal to acknowledge its own wrongdoing obviously hasn’t changed over the years. When a judge finally orders the school to produce public documents, it will be interesting to see whether Mystic Valley complies — or if, instead, its administrators decide the judge somehow improperly claimed jurisdiction, or was wearing the wrong-colored robe or something.

If you want to read the full complaint, Adam’s posted it at the link above. The Boston Globe reports on Campbell’s lawsuit here. And Malden News Network has posted an item on its Facebook page.

Andrea Campbell, in visit to West Medford, says she’ll push for open government

Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

Andrea Campbell said Tuesday that she would work to strengthen the state’s notoriously weak open-meeting and public-records laws if she is elected attorney general this November.

“I’m on the record in supporting legislation that would expand it to include other bodies of government,” she told about two dozen supporters at a meet-and-greet in West Medford. “In order for folks to be meaningful participants in their government, to be civically engaged where it matters, you have to know what’s going on.”

Campbell, a former Boston City Council president and an unsuccessful candidate for mayor in 2021, is one of three Democrats seeking to succeed the incumbent, Maura Healey, who’s running for governor. The other Democrats are Shannon Liss-Riordan, a labor attorney, and Quentin Palfrey, a former Obama administration official. The winner of the Sept. 6 primary will face Republican lawyer Jay McMahon in November.

Liss-Riordan and Palfrey also support reforming the open-meeting and public-records laws, according to their campaign websites.

Readers of Media Nation know that I’m not out there covering the state election campaigns. But the Campbell event was hosted by our neighbors Gary Klein and Betsy Schreuer, who live less than a minute’s walk from our house, so it seemed like a good opportunity to meet one of the candidates. Besides, we no longer have a news outlet in Medford.

Despite the state’s progressive reputation, Massachusetts ranks near the bottom nationally when it comes to government transparency. Back in 2020, Northeastern journalism students asked every candidate for the state Legislature whether they would support extending the open-records law to the Legislature, which is currently exempt — as is the governor’s office. Although most of those who responded said they favored reform, only 71 of the 257 candidates provided answers despite our students’ repeated attempts. Their findings were published in The Scope, a School of Journalism vertical that covers social-justice issues.

Although it’s not the attorney general’s role to propose legislation, that official can nevertheless serve as a visible leader for open government. The AG also has a crucial role in enforcing the laws, which cover the executive branch of state government as well as local and county offices. Campbell said Healey (who has endorsed her) has done “a decent job” of enforcing the current laws, but added she would emphasize greater enforcement. Campbell cited a lawsuit filed by the ACLU after the Plymouth County district attorney’s office demanded $1.2 million in fees to produce public records, as reported by Wheeler Cowperthwaite in The Patriot Ledger. “How does an AG, working with the secretary of state and others, work in partnership so that doesn’t happen?” she asked.

According to a recent poll by the MassINC Polling Group, the Democratic attorney general’s race is wide open. Campbell led with 24%, followed by Liss-Riordan at 16% and Palfrey at 4%. But 50% were undecided or refused to answer. Without naming her, Campbell and several others made several references Tuesday evening to the vast sums of personal money Liss-Riordan is dumping into her campaign — a total that could reach $12 million, according to Lisa Kashinsky of Politico.

Campbell was introduced by Klein, a lawyer and consultant who at one time worked for Attorney General Healey, and by former Attorney General Martha Coakley, who also lives in West Medford. Other Medford political figures on hand were state Rep. Paul Donato, school committee member Melanie McLaughlin and Neil Osborne, the city’s chief people officer.

Most of Campbell’s brief remarks were what you would expect at such an event — an upbeat speech along with calls to vote and make a campaign donation. She also got personal, telling those on hand about the death of her mother, who was killed in a car accident while on her way visit her father, who was incarcerated. Her twin brother died at the age of 29 while in pre-trial detention.

“And yet, every single day,” she said, “I make an intentional choice to turn that pain into purpose.”

Boston’s looming mayoral campaign illustrates the value of ranked-choice voting

Two smart progressive women who serve on the Boston City Council will challenge Mayor Marty Walsh next year, assuming Walsh seeks re-election. I’m not sure I can remember a time that candidates who are the caliber of Michelle Wu and Andrea Campbell have taken on an incumbent.

Their candidacies are yet another reason that you should vote “yes” this fall on Question 2, which would create a system of ranked-choice voting. I’m not exactly making an intuitive argument — RCV, which I wrote about recently for GBH News, wouldn’t apply to the Boston mayoral race. But hear me out.

If municipal elections in Massachusetts were partisan, then Walsh, Wu and Campbell would all run in a Democratic primary, with the winner facing a Republican in the fall. Presumably it would help Walsh enormously to have Wu and Campbell split the anti-Walsh vote.

But that’s not how it works. All three (and perhaps others) will run in a preliminary election, and the top two finishers will face off in November. You could accomplish the same thing with RCV. The point is that Wu and Campbell supporters will be able to vote for their favorite knowing that Walsh will have to face one of them (or someone else depending on who else runs) in a head-to-head contest.

Walsh has been a popular mayor, so I’m certainly not predicting his defeat. But whoever wins will need to get more than 50% of the vote in a one-on-one election. That’s what democracy looks like.

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