Tag: First Amendment

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The city repealed old Police Rule 75 (from 1850s) and a new law (403) that was just as bad on December 23, 2004, in front of Federal Judge Nancy Gertner.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.

The iron lady versus the press

The Watertown Tab & Press will be in Waltham District Court today to argue that a subpoena brought against one of its reporters should be dropped. The subpoena was filed by town council member Marilyn Devaney, who faces charges that she threw a box containing a curling iron at a clerk in a Waltham store in April 2007.

Devaney wants Tab reporter Jillian Fennimore to testify about her knowledge of the case. But Fennimore, through Tab lawyer (and Friend of Media Nation) Rob Bertsche, counters (PDF) that Fennimore has no direct knowledge of what happened, covering the story only through “the traditional tools of journalism: official police reports, interviews with witnesses, and other shoe-leather reporting.”

Forcing Fennimore to testify, Bertsche adds, would have “the effect of preventing her [Fennimore] — the reporter with the most extensive knowledge of these proceedings — from reporting to the public about this criminal trial.” Such a result, Bertsche says, would interfere with the Tab’s newsgathering activities as protected by the First Amendment.

But Devaney’s lawyer, Janice Bassil, counters (PDF) that Devaney is entitled to know who supplied Fennimore with a Waltham police report labeled “Not for Public Release,” saying, “The information sought by the defendant goes to the heart of her claim for vindictive prosecution.”

That report, appended to Bassil’s brief, is highly entertaining. What allegedly set Devaney off was the clerk’s insistence that she couldn’t write a check without the proper ID. By far the best part is this quote from Devaney, which she allegedly spoke to the clerk shortly before hurling the bag at her: “Do you know who I am? I work for the Governor! I’m a lawyer! I’m in the Senate!”

Now, there are a few problems here. Assuming that Devaney knows what positions she holds, there is a good chance that she has been misquoted. She does not work for the governor, but she is a member of the Governor’s Council. She is not in the Senate, but, rather, serves on the Watertown Town Council. I could not immediately determine whether she’s a lawyer.

Devaney is something of a local legend — a contentious presence on the town council who has battled with her colleagues (there’s a whole section of Devaney clips on YouTube). As a Governor’s Council member, well, let’s just say she fits right in.

All kidding aside, it’s appalling that the Tab — part of the GateHouse Media chain — has been forced to spend one dime and devote more than one minute to fighting Devaney’s subpoena. Bassil, in her brief, makes a ludicrously offensive assertion:

The free flow of information will not be damaged as Ms. Fennimore will continue to be able to report on numerous matters similar to this so long as the information sought was authorized to be placed in the public domain.

This is a Soviet-style definition of journalism: Fennimore will continue to be able to do what is authorized, so where is the harm? I hope the judge can see through that and throws out Devaney’s subpoena with alacrity that it deserves.

Photo found on TheBeautyBrains.com.

Reporters won’t testify in Entwistle case

The trial of Neil Entwistle, accused of murdering his wife and baby daughter, is sure to be a spectacle. But here’s one spectacle you won’t be seeing: Judge Diane Kottmyer today ruled that two reporters will not be called to testify during a pre-trial hearing, writes David Frank of Massachusetts Lawyers Weekly.

Laurel Sweet and Michele McPhee reported in the Boston Herald in November 2007 that Entwistle had written a suicide note while in jail. Sweet, who’s still with the Herald, and McPhee, now a talk-show host for WTKK Radio (96.9 FM), got off the hook when prosecutors said they have no plans to introduce the suicide note at Entwistle’s trial. Call this an ever-so-slight victory for the First Amendment.

McPhee’s got a book coming out on the case next Tuesday.

Saturday morning roundup

If I were Ernie Roberts, the great Globe sports columnist, I’d tell you what I had for breakfast this Saturday morning. I’m not, so herewith a few observations about this and that.

Deval Patrick’s corporate benefactors. The drip-drip-drip over Gov. Patrick’s book proposal has been more a source of amusement than a cause for genuine concern. Today’s Globe story, in which we learn that he takes credit for the 10,000 people who turned out for a Barack Obama rally on the Common, is a hoot.

But yesterday’s Globe story properly noted a real problem — Patrick’s reliance on corporations, some of which will have business before the state, to buy books by the truckload in order to hand out to employees and clients. The impression you get is of a governor so convinced of his own rectitude that he believes he’s above the rules mere mortals have to follow.

Judge Murphy’s future on the bench. A Globe editorial today urges the state Supreme Judicial Court to suspend Judge Ernest Murphy, who was may be fined earlier this week for his bizarre and threatening letters to Herald publisher Pat Purcell after Murphy won a $2.1 million libel case against the Herald. [Correction: The Commission on Judicial Conduct has recommended that Murphy be censured, suspended for 30 days and fined $25,000.]

I assume the Globe means without pay. As a Herald editorial noted on Wednesday, Murphy has been out on paid leave since sometime last year, collecting his salary of nearly $130,000. It’s hard to think of a public official who has profited so handsomely from media criticism of his performance — which, no matter how imperfectly it may have been executed, is supposed to receive the highest possible protection from the First Amendment.

Helping the fans by gouging them. The Herald goes B-I-G today with the fact that the Red Sox are auctioning off Green Monster tickets to the highest bidder, with some seats going for more than $500.

The best quote is from Ron Bumgarner, the Sox’ vice president of ticketing: “We feel it’s our civic responsibility to keep tickets affordable for fans, and at the end of the day, this helps keep other ticket prices down.” You can’t make this stuff up.

Newspaper-killing chain faces death. The Journal Register Co., known within the business as the cheapest chain on earth, is sinking in a sea of debt and is in danger of being delisted by the New York Stock Exchange. The Journal Register’s best-known paper is the New Haven Register, but it also used to own the Taunton Gazette and the Fall River Herald News, now held by GateHouse Media. It also used to own the Woonsocket Call, where I was a co-op student in the mid-1970s.

Cape Cod Today publisher Walter Brooks sent out a blast e-mail with the news, which he titled “Every tear remained unjerked in its little ducts.” No kidding.

Another slap for Judge Murphy

This has become the story that won’t die, and I’m sick of it. So take it away, Jessica Van Sack:

The Commission on Judicial Conduct has recommended Superior Court Judge Ernest B. Murphy be publicly censured, suspended without pay for 30 days and fined $25,000 for sending two “bizarre” and “threatening” letters to the publisher of the Boston Herald.

Globe story here.

(Not) banned in West Roxbury

Anti-gay activist Robert Joyce is trying to get my old paper, the Boston Phoenix, banned in West Roxbury, the Roslindale Transcript reports. Joyce says he doesn’t like the Phoenix’s adult-oriented classified ads, although he adds that it would be OK if escort services offered chicken dinners.

One of Joyce’s targets, liquor store owner Gary Park, says Joyce threatened him if he continued to carry the Phoenix. Jessica Smith writes:

“He [Joyce] walked in here and instead of talking like a gentleman, he started making threats and giving me ultimatums,” said Park.

The threats include promises of a protest. Joyce said that while the group has yet to apply for a permit to protest, his organization was looking for volunteers to hold signs and to organize such an event. Still, that did not sway the man who owns Gary’s Liquors.

Park said he does not intend to stop carrying the publication that he has had in his store for years and is available for free all over the commonwealth.

“Mr. Joyce has way too much time on his hands. He should be helping homeless people and the elderly. If he doesn’t like the paper, then don’t come pick it up,” said Park, who stressed that his business caters to individuals who are age 21 and older.

Someone should tell Joyce that picking up a copy of the Phoenix every week is not mandatory. Although I recommend it.

By the way, the name of Joyce’s organization is the delightfully Orwellian Support Community Decency Inc. (Via Universal Hub, which also links to this story in the West Roxbury Bulletin.)

A judicial breach of privacy

Superior Court Judge Allan van Gestel‘s contempt for privacy ought to concern all of us. And his latest is hardly the first time he’s made a dubious decision involving the rights of individuals.

Van Gestel recently ordered the ticket service StubHub to turn over the names of about 13,000 customers to the New England Patriots as part of the team’s crackdown on ticket scalping (Globe story here; Herald story here). In a particularly ridiculous gesture, van Gestel ordered the Patriots not to reveal the names to anyone else. But isn’t it the Patriots from whom those customers were most trying to conceal their identities?

Van Gestel is also the judge who’s blocked Herald columnist Howie Carr from taking his talk show from WRKO (AM 680) to WTKK (96.9 FM). I’m not going to argue the legalities of noncompete clauses, right-to-match provisions and the like. Morally, though, there’s something reprehensible about telling Carr he can’t work for any radio station but WRKO until 2012, even though Carr’s contract expired last month.

And say, your honor, does Carr have any recourse regarding the “Virtual Howie” that’s now online at the WRKO Web site?

Finally, in 2000 I bestowed upon Judge van Gestel a Phoenix Muzzle Award for his mind-boggling decision to impose prior restraint on a group of anti-gay activists who had recorded a sex-education session for teenagers and were playing it for anyone who cared to listen.

What the anti-gay hatemongers did was contemptible. It also happened to be protected by the First Amendment, which van Gestel later acknowledged by removing the media from his order.

A privilege for the privileged

Amy Gahran of the Poynter Institute writes that a proposed federal shield law would actually be a step backwards. Under the original version, the bill would protect “a person engaged in journalism” from having to reveal his or her anonymous sources, a definition seemingly elastic enough to cover bloggers.

The new version, by contrast, covers “A person who, for financial gain or livelihood [Gahran’s emphasis], is engaged in journalism,” which would largely restrict the shield law’s protections to professional journalists. Gahran writes:

Journalism is a practice, not a priesthood. At its core it’s about committing acts of journalism, not about getting a degree, being employed, or even getting paid. I think a federal shield law with such exclusive language would only serve to diminish the practice and independence of journalism, especially among people who are sticking their necks out entirely on their own to do it.

She adds that she hopes President Bush vetoes it. (Don’t worry; he will.)

As we’ve seen in recent years, journalists have no constitutional right to protect their anonymous sources if they’re call into court to testify. Judith Miller‘s case is the best-known, but there are many others as well.

Forty-nine states either have shield laws or state-court opinions that essentially require judges to consider all other options before forcing journalists to testify. But there is no such protection at the federal level, which is why Congress is now considering such legislation.

The trouble is, as Gahran notes, the First Amendment recognizes no special privileges for journalists as a class. Nor should it. The First Amendment is for all of us. By passing a shield law that protects journalism as an activity, Congress would be honoring the spirit of the First Amendment. The change Gahran rightly worries about would only protect members of the “priesthood.”

It would be interesting to learn why the language was changed, and who was behind it.

NPR’s “On the Media” has a good summation of the shield-law debate.