Tag: First Amendment

Closed-door government

The Boston City Council, having been found in violation of the state’s open-meeting law earlier this year, has come up with an all-too-typical response. According to Boston Herald reporter Ed Mason, council members today will take up an 80-page report that it commissioned urging the state to exempt them from the law.

Council president Maureen Feeney tells Mason that the law presents “challenges” and is “confusing.” Before I go any further, you should know that the law does nothing more than require governmental bodies such as the city council to conduct the public’s business in public, and to provide adequate notice of when its meetings will take place.

Councilor Michael Flaherty is quoted as saying that the law creates a “chilling effect,” claiming, “You can’t even have a conversation with colleagues in the hallway or in a session.” That’s an interesting observation. The law says that a quorum — that is, a majority — of members cannot discuss official business outside the context of a legal, publicly announced meeting.

If Flaherty had said, You can’t even have a conversation in the hallway with six or more colleagues about city business, that would be accurate. It would also underscore the absurdity of his complaint.

The law doesn’t even require public meetings when there is a good reason for them to be held behind closed doors. Various exceptions are allowed, most typically to discuss contract negotiations and lawsuits.

Any journalist, community activist or public watchdog who’s spent any time dealing with municipal government will tell you that the open-meeting law ought to be strengthened, especially with regard to punishing violators.

The law is a burden only to public officials who think the public is a burden.

More on that Cape Cod blogger suit

David Ardia, writing for the Citizen Media Law Project, has posted a PDF of the actual lawsuit brought against Cape Cod Today blogger Peter Robbins (photo at left), which I described this past weekend.

According to Ardia, Robbins and a pseudonymous commenter — in the original, unedited blog post — made several statements that could prove to be troublesome concerning plaintiff Joe Dugas and others involved in trying to stop the dredging of Barnstable Harbor.

As Ardia notes, the standard in libel law is that a factual assertion, even if it is couched in the form of an opinion, could be libelous if it is judged as false and defamatory. That’s what Dugas and his lawyer, Paul Revere III, claim in their suit against Robbins and “noggin,” the pseudonymous commenter.

On the other hand, Ardia writes, the decision by Cape Cod Today publisher Walter Brooks to remove the material Dugas found objectionable could substantially limit the amount of damages the plaintiffs might collect.

One other thing: In an e-mail to Media Nation, Ardia says I was wrong to assert that federal law protects Internet service providers such as Cape Cod Today as long as they promptly remove potentially libelous content. According to Ardia, an ISP retains its immunity even if it does not remove the material.

“No court has found that a website operator must respond or remove allegedly libelous content to retain immunity under Section 230 of the Communications Decency Act,” Ardia writes. And he guesses, correctly, that I was getting confused with copyright law, which does indeed hold an ISP harmless as long as it promptly responds to complaints of copyright infringement.

Media lawyer Robert Ambrogi also weighs in on the Robbins case, as well as another libel suit brought against a blogger, asking, “Has someone installed a hair trigger on libel lawsuits against bloggers? If you don’t like what a blogger writes, just take a litigation potshot.”

Cape Cod blogger is sued for libel

A Cape Cod blogger who criticized a group of Barnstable residents for filing a lawsuit aimed at stopping a dredging project in Barnstable Harbor has himself been sued — for libel.

Peter Robbins, who describes himself on his blog as a retired homicide investigator, wrote a post this past March 11 in which he referred to the anti-dredging suit as “this, NIMBY, frivolous, malicious action is doing nothing but stalling the inevitable and costing us the taxpayers unnecessary time and money.” (“NIMBY” stands for “not in my backyard.”) And he identified by name the people who brought the suit, saying that “these are the people who are costing you.”

I’m not going to wade in too deeply until more information becomes available. So far, the only account of the suit is this one, on the Web site Cape Cod Today, which hosts Robbins’ blog. It’s impossible to know precisely what constitutes the alleged libel, because Cape Cod Today publisher Walter Brooks reportedly removed “certain phrases and sentences” at the request of Paul Revere III, the lawyer for plaintiff Joseph Dugas, one of the people identified by Robbins as suing to stop the dredging project.

Presumably all parties agree that what’s there now is not libelous, so there’s no sense in analyzing it. What would be telling is to see what got deleted.

There are several interesting aspects to this suit, and they will be worth following as we learn more:

1. The legal liability of the lone blogger. Under federal law, a Web site such as Cape Cod Today can be considered an Internet service provider exempt from liability if it merely acts as a host for bloggers such as Robbins, and is not involved in actively soliciting, editing and publishing their work. As long as a publisher such as Brooks responds to a request to remove allegedly libelous material, he is free and clear.* That leaves the blogger in an incredibly vulnerable position.

That doesn’t mean Cape Cod Today has thrown Robbins over the side of the boat. The site continues to host Robbins’ blog, and Brooks himself has been calling people’s attention to the suit. But the situation is very different from a reporter for a news organization getting sued, a situation that invariably leads to the organization’s being named as a defendant as well.

2. The privacy of anonymous commenters. According to the Cape Cod Today report, Dugas is suing not just Robbins but also an anonymous commenter who posted under the name “noggin.” The comment has been removed. Cape Cod Today requires registration before anyone can comment, which means that Brooks and company may know who “noggin” is. That, in turn, could lead to a legal battle over whether to reveal his or her identity. (Presumably “noggin” could have registered under a phony name, too, which would make tracking him or her down much more difficult, but not necessarily impossible.)

3. The role of the anti-SLAPP statute. Robbins’ lawyer, Peter Morin, is quoted as saying, “This matter is a textbook example of the justification for an anti-SLAPP statute that protects the right of individuals to comment on matters of significant public concern.” The term “SLAPP” stands for “strategic lawsuit against public participation.” Morin is claiming that the intent of Dugas’ suit is to silence Robbins and prevent him from participating in a matter of public interest. (Judith Miller — yes, that Judith Miller — has written a good piece on anti-SLAPP laws.)

This is of particularly interest to me, as I recently wrote an affidavit on behalf of a defendant in a libel case who was claiming protection under the Massachusetts anti-SLAPP law. In Massachusetts, unlike, say, California, it is not firmly established that anti-SLAPP protection extends to the media — it’s aimed more at community activists.

But with small, independently owned newspapers (yes, there are some) and bloggers, the dividing line between community activism and journalism doesn’t always exist. Advocacy journalism, after all, is both advocacy and journalism.

To be continued — I’m sure.

*Correction: Not exactly. See the comments of David Ardia in this update.

Photo of Sandy Neck Light in Barnstable Harbor (cc) by Mark Crosby, and republished here under a Creative Commons license. Some rights reserved.

MIT gag order has been lifted

Media Nation reader J.H. passes along word from the Electronic Frontier Foundation that the MIT gag order has been lifted. U.S. District Judge George O’Toole reportedly found that the MBTA is unlikely to prevail in its lawsuit against three MIT students and the university itself.

Background on the case here and here.

Although this is clearly better than not lifting the gag order, it’s also not much of a victory for the First Amendment. The fact is that the MIT students had every right to make their presentation on flaws in the MBTA’s electronic fare system, and they were not allowed to do so.

It makes a mockery of the principle that prior restraint is to be reserved only for serious issues of national security, obscenity and incitement to violence.

Anti-free speech round-up

The First Amendment is front and center in this morning’s Boston Globe. Three stories for your consideration:

1. Paranoia and the MBTA. Friend of Media Nation Harvey Silverglate argues that the court-ordered censorship of three MIT students is rooted in post-9/11 paranoia about security. The law is aimed at computer hacking that could put people in danger; now it’s being applied merely to writing about hacking, and not the sort that might endanger lives but, rather, would simply cost the T money. Silverglate concludes that “with the ghosts of 9/11 and ‘national security’ hovering, the students and the First Amendment didn’t stand a chance.” (Silverglate also blogs for the Boston Phoenix.)

2. Criminalizing symbolic speech. An Associated Press news brief reports that a Louisiana teenager has been sentenced to four months in prison for hanging nooses off the back of his truck and displaying them at a civil-rights rally on behalf of the Jena Six. Recently I challenged Peter Porcupine to find an example of a hate-crime law that criminalizes speech. Sadly, I think I’ve just found one. Take a look at this ABC News report on the case against the teenager, Jeremiah Munsen. There are complicating factors, and Munsen does appear to be quite the dirtball. But essentially Munsen is going to prison for his exercise of symbolic speech. “I wish we had a charge in Louisiana for aggravated ignorance,” a police officer is quoted as saying. Apparently that’s unnecessary; the federal hate-crimes statute will do quite nicely.

3. Teaching students they have no rights. In Knoxville, Tenn., a high-school student sued for the right to wear Confederate-flag clothing to school, a violation of the dress code. His case ended in a mistrial, according to the AP. The right of school districts to impose such codes is so well-established that this is scarcely worth a mention, except as a reminder that young people are raised and educated in an environment that’s devoid of constitutional protections. We shouldn’t be surprised that a majority of them grow up to oppose the constitutional rights of others, as you will see in the second entry here.

Yesterday Media Nation commenter Leslie wrote, “For us liberals to reflexively hide behind the free speech banner is too easy.” I hope these three examples show that it’s actually hard. Speech that we like needs no defense.

If you’re going to stand up for the First Amendment, you are invariably going to find yourself standing up for kids whose actions might make it easier for people to rip off the T, or for racist teenagers from Louisiana or Tennessee. So be it.

Here you go, Your Honor

U.S. District Judge George O’Toole yesterday continued the restraining order against three MIT students who had been prevented from telling what they know about security problems with the MBTA’s automated fare system.

Among other things, O’Toole demanded that the students hand over a paper they wrote for class by today at 4 p.m.

Well, I don’t know if this will expedite matters, but here’s the slideshow (PDF) they were planning to use during their presentation in Las Vegas last weekend. Does that help?

Ridiculous. And good for The Tech for putting it online.

Sorry, Charlie — no free speech for you

Charles Evans Hughes forgot something when he wrote the U.S. Supreme Court’s landmark Near v. Minnesota decision in 1931.

The chief justice listed national security, obscenity and the imminent threat of violence as essentially the only three reasons that the courts could ever step in and order someone not to exercise his right to free speech. What he left out: information that could result in the MBTA’s losing some fare money. What a bonehead, eh?

Boston Globe reporter John Guilfoil (a former student of mine, by the way) wrote yesterday that U.S. District Judge Douglas Woodlock had granted the T’s request for an injunction preventing three MIT students from presenting their findings on security defects in the Charlie Card, the T’s electronic ticketing system. They had been scheduled to speak at the DEFCON 16 conference in Las Vegas.

For good measure, the T is suing MIT, too, for the grave offense of not teaching its students how to be good, Charlie Card-paying citizens.

In today’s Boston Herald, O’Ryan Johnson reports that one of the students is saying the trio offered to show MBTA officials their findings so they could fix their flawed system. Instead, the T decided to sue them.

For those of you with long memories, you may recall that Judge Woodlock is a piece of work. During the 2004 Democratic National Convention in Boston, Woodlock ruled that a cage set up by officials for the use of protesters was “an offense to the spirit of the First Amendment” — but then declined to do anything about it. He’s not big on newspaper boxes, either.

In 2005, Woodlock was the proud winner of a Boston Phoenix Muzzle Award for his outrages against free speech. It looks like he’s well on his way to a second statuette.

This story had gone nationwide — heck, worldwide — even before the Globe and the Herald got hold of it, as Universal Hub showed on Saturday. This will not end well for Woodlock. In the meantime, though, he’s created an unnecessary hassle for everyone concerned, and emboldened the T, which — wouldn’t you know — won a Muzzle in 2006.

Photo (cc) by David Bruce and republished here under a Creative Commons license. Some rights reserved.

Stephen Baird on Menino’s crackdown

Musician Stephen Baird, the founder of Street Arts and Buskers Advocates, offers more details on Mayor Tom Menino’s crackdown at Faneuil Hall. In an e-mail to Media Nation, Baird notes that the steel fence erected by city and federal officials blocks the Freedom Trail, something the irony-deprived mayor no doubt fails to appreciate.

I reproduce Baird’s e-mail (which I have lightly edited) with his permission:

The City of Boston and National Park Service put a fence around one of the premier symbols of freedom in America — Faneuil Hall. The fence actually blocks the Freedom Trail. This was done to disenfranchise the civil rights of street artists and the general public who freely choose to peaceably assemble and support them. The fence is a blight not only on the city, but the country. The fence, similar to the old Berlin Wall, is a symbol of Mayor Thomas Menino’s and other government officials’ failure to develop intelligent and equitable public policies and regulations.

There was no warning or public process before this crackdown. Portrait artists, living statues and street performers were suddenly told they could no longer exercise their First Amendment artistic expression in this public park by the police. There are no written guidelines or laws, just the arbitrary whim of the police officers and government officials of where people can perform and audiences can gather.

These actions are all being done in direct defiance of stipulation by Boston city attorneys in the federal court case Community Arts Advocates Inc. v. City of Boston et al. (December 2004), where they stated artists would not be stopped from exercising their First Amendment expression in Sam Adams Park.

Background:

I sued the City of Boston 2004-2006 over arrests and threats of arrest in Boston Common, Downtown Crossing, Copley Square and Sam Adams Park.

The city repealed old Police Rule 75 (from 1850s) and a new law (403) that was just as bad on December 23, 2004, in front of Federal Judge Nancy Gertner. I was threatened with arrest in Sam Adams Park while conducting an interview with Boston Phoenix about this court case. See photograph and details.

I argued that the city could not allow Faneuil Hall audition artists to use Sam Adams Park and not allow other artists. And I won.

I proposed an ordinance similar to the Cambridge ordinance, but the city stated it would use other laws, including the noise ordinance, to control performances. The police have since failed to monitor sound levels with decibel meters. (Sound is also supposed to be inaudible at 100 feet, which could control bucket drummers). The city cannot control performance location issues with out doing drastic, heavy handed and unconstitutional ad hoc use of other laws. See the front page Boston Globe story by Donovan Slack on Aug. 1, 2008.

The City of Boston put chairs and tables in the primary performance area in Sam Adams Park, which pushed artists next to the restaurant that caused the current complaints.

The closing of Filene’s and construction of Downtown Crossing has pushed many artists to Sam Adams Park. There are many conflicts of space, sound and other issues between artists. Artists — Balloon, Living Statues, Portrait Sketch, Bucket Drums — started to set up on north side of Faneuil Hall facing Quincy Market, which has curtailed and caused major tensions with Quincy Market artists.

As long as the city fails to set up performance location guidelines, a lottery system to share the performance locations/time and enforce the noise ordinance consistently/fairly (the police and firemen union picket demonstration were 10 times louder then any performers at Sam Adams Park), then the situation will flare up with arrogant abuse of power that is both mean-spirited and unconstitutional.

I suspect the only way I will be able to bring any measure of equity to this situation is through the federal court.

Stephen H. Baird
Street Arts and Buskers Advocates
Community Arts Advocates Inc.
P.O. Box 300112
Jamaica Plain, MA 02130
E-mail: info {at} BuskersAdvocates {dot} org
Web: www.BuskersAdvocates.org

Cultivating ongoing fundamental relationships between artists and communities by celebrating self-expression as a basic human right essential for the healthy growth of youth, individuals and communities.

Menino’s last tangle with Baird resulted in His Honor’s receiving a 2005 Phoenix Muzzle Award. It looks like he’s well on his way to winning another one.

Photo courtesy of Stephen Baird.

Stop having so much fun

Boston Mayor Tom Menino has really outdone himself with his edict to crack down on street performers at Faneuil Hall Marketplace. His Honor has always tended to prefer other people’s free speech in moderation, but this is ridiculous.

Adam Gaffin: “Staring down from his cave with a sour, Grinchy frown.”

The Outraged Liberal: “I didn’t realize balloon artists were so noisy, although I admit to occasionally getting chills when you twist a balloon and it makes a little squeak.”

What really gets me about Boston Globe reporter Donovan Slack’s story is that this is apparently being done, in part, for the benefit of restaurant patrons sitting outdoors on warm summer days and nights. I mean, we can’t have people who are spending money being bothered by people who aren’t, can we?

“When it’s nice, we like to open the doors,” a restaurant manager named Jennifer Achevarria told Slack. “Our biggest concern is the noise level, which directly affects our paying guests and disturbs the ambience.”

Good grief. And in the shadow of Faneuil Hall no less. Samuel Adams would be frowning on the beer named after him if Jim Koch hadn’t already shrunk his picture to near-invisibility.

Photo (cc) by Chris Kirkman and republished here under a Creative Commons license. Some rights reserved.