Tag: First Amendment

What if the First Amendment were as untouchable as the Second?

On By Dan KennedyIn First Amendment, Politics

I’ve been trying to think through what would change if the First Amendment were as untouchable as the Second. I’m sure this is an incomplete list, but here are a few ideas that come to mind:

  • Child pornography would be legal. It might still be illegal to make it because of the horrific child abuse it would entail. But sell, distribute or possess it? No problem.
  • Obscenity in general would be legal. This is a very slippery concept, and in fact it is difficult to know exactly what would be considered obscene circa 2017. But depictions of bestiality or rape would be fine. As with child pornography, it’s possible that someone could be prosecuted for the underlying acts, but not for selling, distributing or possessing it.
  • Libel would cease to exist. Want to publish something false and defamatory about someone? Go for it. And don’t worry about whether she’s a private figure. That distinction is so 20th-century.
  • If the United States is at war, and you somehow come into possession of plans detailing the specifics of an operation against enemy troops, well, go ahead and publish them. Under our new, absolutist First Amendment, Col. Robert McCormick did nothing wrong.
  • If you’re, say, a Ku Klux Klan leader, and you exhort a mob to lynch a black man standing at the periphery of the crowd, and they do it, you have nothing to worry about. The criminals who actually carry out the deed could be prosecuted for murder, of course, but under an absolutist view of the First Amendment there would be no such thing as incitement.

No rational person, of course, would support any of these changes to the First Amendment. Even someone who considers himself pretty much an absolutist, as I do, has to acknowledge that not every single form of expression can be protected by the Constitution. So why can’t extreme gun-rights advocates see that they’ve abandoned all rationality?

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Bring lots of quarters

On By Dan KennedyIn First Amendment21 Comments

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State officials have ruled that it’s all right for the Cambridge Police Department to charge the Cambridge Chronicle $1,215 for nearly a month’s worth of public records. The Chronicle had sought descriptions of criminal suspects, the addresses of those who had been arrested and the addresses to which police responded between July 1 and 27.

“Given that a large number of documents, which may contain sensitive information about the identities of the victims and witnesses, are required to be properly viewed, I consider this to be a reasonable fee estimate provided by the department,” the Chronicle quotes Alan Cote, the records supervisor for the secretary of state’s office, as saying.

Trouble is, the Chronicle contends that, before June, the police had routinely been making most of that information available. Even though the state has now found that the police are not doing anything illegal by withholding certain types of information from its daily public reports, the police department is nevertheless moving in a direction of less openness — not a good thing for any law-enforcement agency, let alone one that is in the midst of an investigation stemming from the arrest of Harvard scholar Henry Louis Gates.

As I wrote when this first came up in August, the fees being imposed by the police department are an outrageous breach of the public’s right to know. And it’s not being done in isolation. Last month the Boston Globe reported on public officials who are using high fees to discourage bloggers and financially struggling news organizations from obtaining public records.

It’s time for elected officials who believe in governmental openness to rethink the practice of charging high fees for information that, by right, ought to be freely available to the public.

Libel battle won, but war remains lost

On By Dan KennedyIn Media, Society5 Comments

A battle has been won over a bizarre and dangerous decision by a federal appeals court earlier this year that truth may not be a defense in libel cases brought by private parties. Unfortunately, the war remains lost.

According to lawyer Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, a jury found recently that the office-supply chain Staples did not act with malice when a manager sent an e-mail to some 1,500 employees informing them he had fired a sales manager named Alan Noonan for violating the company’s travel and expense policies. (Ambrogi points to an article in the National Law Journal, but it’s subscription-only.)

As I reported earlier this year in the Guardian, the U.S. Court of Appeals for the First Circuit, in Boston, ruled that Noonan’s libel suit against Staples could proceed even though the contents of the e-mail were true. The court relied on an old provision of Massachusetts libel law pertaining to “actual malice,” which Judge Juan Torruella wrote should be defined as “ill will” or “malevolent intent.” Torruella earned a Boston Phoenix Muzzle Award for his anti-First Amendment decision.

Although Staples may not spring immediately to mind when one thinks about freedom of the press, the implications for the news media are obvious.

In the 1964 U.S. Supreme Court case of Times v. Sullivan, actual malice is defined as pertaining to a defamatory statement made with knowing falsity, or with “reckless disregard” for the truth. And though Times v. Sullivan applies solely to public officials, a series of subsequent decisions by the Court made it clear that a defamatory statement can never be found libelous if it is true — a principle asserted by free-speech advocates since the 1735 trial of John Peter Zenger.

First Amendment lawyers such as Ambrogi and Robert Bertsche wrote that Torruella should have thrown out the Massachusetts law, on the books since 1902, as unconstitutional in light of Times v. Sullivan.

So far, though, Torruella’s toxic handiwork remains in effect — at least in Massachusetts.

The high cost of Cambridge police records

On By Dan KennedyIn Uncategorized51 Comments

The Cambridge Police Department has adopted a restrictive policy that would force the Cambridge Chronicle to pay more than $1,200 to obtain public records of police activity for most of July, according to a story by Chronicle reporter Erin Smith. What’s more, the policy may be in violation of the Massachusetts public-records law.

Like all Massachusetts police departments, Cambridge’s makes a bare-bones incident log freely available to members of the public; it is, in fact, online. But state law exempts police departments from having to release detailed information about incidents that are under investigation.

What is and isn’t public information, and when it must be made public, are complicated matters that I’m not going to get into here. But the law does require that the public log — also known as the police blotter — contain the “names and addresses of persons arrested and charges against such persons.”

According to the Chronicle, though:

The Cambridge Police Department already keeps a daily police log online maintained by a student intern, but over the past several months, the Chronicle noticed that previously available information — such as the ages and addresses of arrested people, the addresses where crimes occurred and the description of suspects — was being withheld from the public.

In quickly scanning through a few days’ worth of the Cambridge log, I found several examples of arrestees whose addresses (and ages) were listed. I couldn’t find any whose address was not listed. I have no reason to doubt the Chronicle’s reporting, but it’s important to point that out.

The fees are another matter. Charging $1,215 for public records is an outrageous breach of the public’s right to know. The police department’s lawyer, Kelly Downes, cites the cost of compiling and copying those records. But the standard practice with many police departments is to allow reporters to view the originals at the police station, at no cost to anyone.

Given the embarrassment over the department’s recent arrest of Harvard scholar Henry Louis Gates in his own home, you’d think that everyone would be on his or her best behavior these days. Well, think again.

And by the way — we’re still waiting to hear how Sgt. James Crowley, who arrested Gates, managed to incorporate information into his report from a woman who insists she never talked with Crowley. Maybe Downes hasn’t had a chance to work out a price for that particular piece of information.

Media should keep pushing on Crowley

On By Dan KennedyIn Uncategorized101 Comments

Even many of us who think the Cambridge Police overreacted by arresting Henry Louis Gates in his own home have assumed — for the sake of argument if nothing else — that Sgt. James Crowley’s report was accurate.

I’ve contended from the beginning that Crowley’s mistake was in failing to recognize why Gates would think he’d been racially profiled. Friend of Media Nation Harvey Silverglate and Slate columnist Christopher Hitchens have both written that the issue wasn’t race, but Gates’ constitutional right to throw a nutty in his own home. I agree.

But with Crowley, Gates and President Obama settling in for an awkward beer later today, let’s not forget that there is an enormous discrepancy between Crowley’s report and the statements of Lucia Whalen, the woman who called 911 and then waited at the scene until police had arrived.

Using very specific, descriptive language, Crowley wrote that Whalen told him she’d seen “two black males with backpacks on the porch.” And when the Boston Herald pointed out the discrepancy to Crowley, he replied, “Obviously, I stand behind everything that’s in the police report. It wouldn’t be in there if it wasn’t true.”

Yet Whalen, at first through her lawyer, Wendy Murphy, and yesterday in her own appearance before the media (Boston Globe story here; Herald story here; Cambridge Chronicle story here), has insisted that she and Crowley never spoke.

The media need to keep pushing. If Crowley’s report turns out to be wrong in some fundamental way, then it calls everything else into question as well.

Creative Commons photo (cc) via Wikimedia.

Fighting censorship at his old school paper

On By Dan KennedyIn Uncategorized1 Comment

A summer intern at the Cape Cod Times named Henry Rome was such an outstanding journalist at his high-school paper in Pennsylvania that he was named the National High School Journalist of the Year.

Now, before he heads off to Princeton University this fall, he’s fighting a proposal that could result in his old paper being censored by school officials before publication.

George Brennan reports.

More on the Newton North controversy

On By Dan KennedyIn Uncategorized3 Comments

Newton blogger Chuck Tanowitz shares some thoughts on the battle between city officials and the Newton Tab over access to the Newton North construction site.

Meet the Tab’s new editor

On By Dan KennedyIn Uncategorized2 Comments

It’s Newton Mayor David Cohen, who tells the Newton Tab’s Dan Atkinson that photos are “not essential” for reporting on progress at the Newton North High School construction site.

Earlier: “Meet the Tab’s new photographer.”

Meet the Tab’s new photographer

On By Dan KennedyIn Uncategorized5 Comments

The Newton Tab reports that Alderman Ken Parker took a photo of the Newton North High School construction site with his iPhone and sent it along to the Tab. Parker says he didn’t do it surreptitiously, either. Amazing. Earlier item here.

Press barred from public tour of public school

On By Dan KennedyIn Uncategorized16 Comments

You wouldn’t think that when public officials tour a public school, anyone would be brazen enough to bar a news organization by claiming it’s a “private event on private property.” But that’s exactly what happened on Wednesday, according to the Newton Tab, which had assigned a reporter and a photographer to cover a tour of the $200 million Newton North High School construction site.

The Tab’s Dan Atkinson reports that Mayor David Cohen, a number of aldermen and members of the school’s design-review committee took the tour, but that Dimeo Construction wouldn’t allow the press to tag along — even though the event had been posted as being open to the public.

“It’s an essentially private event on private property,” Cohen spokesman Jeremy Solomon is quoted as saying. “It doesn’t entitle the media to attend.” Solomon added: “Elected officials deserve the courtesy to ask any questions without being concerned about how they’re portrayed in the Tab.”

The Newton North project — the most expensive public school in the history of the state, if not the known universe — has long been controversial. The Boston Globe’s Newton Wiki reports that the current price tag of nearly $200 million has almost doubled since 2003, when Cohen first proposed it. Newton voters approved it in a 2007 referendum.

Based on the facts as reported by the Tab, it’s unclear as to whether officials violated the Massachusetts open-meeting law, which, among other things, forbids private governmental meetings when there is a quorum present. Atkinson writes that “at least” nine aldermen took the tour — well short of a quorum, given that Newton has 24 aldermen. But if a quorum of design-review committee members was present, what took place might be considered an illegal meeting.

More important, what happened to the Tab on Wednesday was not just an affront to the press, but to the proposition that the public’s business should be conducted in public. As Tab publisher Greg Reibman said, “[I]t’s not the Tab that is being punished. It’s the taxpayers who are spending nearly $200 million on this project and they deserve to know how their dollars are being spent.”

More: Great catch by Michael Pahre, who notes that there is an “on-site inspection” exception to the open-meeting law. So, in all likelihood, no violation of the law took place. “That said,” Pahre writes, “the Newton officials were boneheaded in announcing this as a tour that is open to the public if they don’t want the press to attend.”

Still more: The Tab says that its reporter was allowed to take a tour today. But still no photos (or photographer), please.