By Dan Kennedy • The press, politics, technology, culture and other passions

Tag: Free speech Page 1 of 6

Tell the White House we need to preserve net neutrality

Normally I’m not a big fan of journalists’ signing petitions. But preserving net neutrality is so fundamental to what we do that we should all send President Obama a strong message. We need net neutrality to provide the public with the information it needs for self-government — it’s that basic.

This particular petition is endorsed by Tim Wu, who literally coined the phrase. I haven’t checked out all the prominent supporters, but I know that Jeff Jarvis is among them. If the possibility of democratic media is important to you, please sign.

And here is some background on net neutrality from Free Press.

ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

SJC rules against journalist-activist

Adam Gaffin has already posted some details on the state Supreme Judicial Court’s ruling earlier today against Fredda Holland, a journalist who claimed that a libel suit filed against her should be dismissed on the grounds that it was aimed at putting a halt to her community activism. Gaffin has posted the full decision as well.

Hollander, a former reporter for the Regional Review, had been active in a neighborhood association along with her husband, Bill Lee. She had used her platform at the Review to oppose plans by a North End developer named Steven Fustolo. When Fustolo sued her for libel, Hollander’s lawyer, Harvey Shapiro, argued that she should be protected by the state’s anti-SLAPP law, an acronym that means “strategic lawsuit against public participation.”

For background, click here. Disclosure: I was paid to write an affidavit (pdf) on Hollander’s behalf at an earlier stage of the case.

Still more on SLAPP and libel

Excellent guidance from noted First Amendment lawyer Robert Bertsche.

ACLU lawyer explains libel and SLAPP

Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:

The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the SLAPP suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.

In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.

My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.

Earlier coverage.

Live-blogging the anti-SLAPP hearing

I’m watching the anti-SLAPP hearing here. Background on the case here.

And that’s a wrap. The Supreme Judicial Court will consider the arguments it heard this morning and issue a decision at some later time. It strikes me that the questions were equally tough for both sides — that Harvey Shapiro, the lawyer for journalist-activist Fredda Hollander, and Bruce Edmands, the lawyer for developer Steven Fustolo, were kept on the defensive during their arguments. No way of saying how this will come out.

To repeat my disclosure: I was paid by Fredda Hollander to write an affidavit (pdf) for her during an earlier stage of the case.

10:03 a.m. Edmands says Shapiro is correct that the media are covered in California, but the law is very different. If Shapiro wants anti-SLAPP protection extended to the media in Massachusetts, Edmands says, then “the correct forum is not this court, respectfully, but the Legislature.”

10:01 a.m. What about letters to the editor? asks one of the justices. Isn’t that petitioning? “It doesn’t have to go directly to the government body. Every official in town reads it,” he says. Edmands responds that letters are “widely understood to be expressions of opinion by the author,” unlike “factual” news stories.

The justice follows up by asking if the publisher wouldn’t be “petitioning” by publishing the letter. Edmands replies that it would be, but that the publisher should be treated differently from a reporter.

9:57 a.m. Edmands says the anti-SLAPP statute has never been extended to the media. It’s pointed out to him that a Superior Court decision did just that. “Don’t knock the Superior Court,” says one of the justices. “Some of us are graduates of the Superior Court.”

9:55 a.m. To clarify — Hollander and her husband, Bill Lee, were active in a North End neighborhood organization. She contends that her journalism for the Regional Review was an extension of that activism.

9:53 a.m. Justice asks what about a newsletter editor railing about an issue to his or her members. Edmands reponds that that would be closer to petitioning activity, but that’s not what Hollander did.

9:52 a.m. Edmands: “I think the statute was really intended to protect people who appear before governmental body … and speak out about their concerns.”

9:50 a.m. Now we’re hearing from Bruce Edmands, lawyer for developer Steven Fustolo, who’s suing Fredda Hollander for libel.

9:47 a.m. Justice asks if all investigative reporting would be covered. Purpose is “to cover something that is wrong so that the government will take action.” Shapiro replies that, yes, such reporting would be covered by anti-SLAPP law.

9:46 a.m. Justice asks if any other jurisdiction has adopted Shapiro’s interpretation. Shapiro replies that California anti-SLAPP law covers First Amendment activity. “They have uniformly covered journalists.” But he concedes the California law is broader in terms of activities that are protected.

9:43 a.m. Justice says applying anti-SLAPP to newspaper reporter is “a whole different kettle of fish.” Shapiro responds that “it embraces broader concepts of petitioning.” He adds: “Using the press is a fundamental form of petitioning.”

9:40 a.m. The justices are concerned that Shapiro’s interpretation would obliterate libel if anti-SLAPP can be invoked.

9:39 a.m. The justices question Shapiro about the lack of a personal stake journalists generally have in the stories they cover, whether they express an opinion or not. The idea is that the anti-SLAPP law generally covers only political activists with a stake in the outcome.

9:37 a.m. Justice asks Shapiro if community newspapers should be treated differently from the Globe or the Herald. Shapiro responds that if the reporter is writing in a way that “enlists public support,” then that is “petitioning activity” and should be covered.

9:36 a.m. Harvey Shapiro, lawyer for Fredda Hollander, is arguing before the state’s Supreme Judicial Court right now.

My affidavit in the anti-SLAPP case

Fredda Hollander, an activist-journalist who will appear before the state’s Supreme Judicial Court on Monday, has given me permission to post the affidavit (pdf) I wrote for her at an earlier stage of her case. It’s a public document, but given that I was paid to write it, I wanted to check in with her first.

The issue at stake is fairly complicated, and really doesn’t have all that much to do with libel, even though her claim is related to a libel suit filed against her. A North End developer, Steven Fustolo, is suing Hollander for libel in connection with articles she wrote for a local newspaper, the Regional Review. Hollander counters that she did not libel Fustolo, and that his suit is a form of harassment covered by the state’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public participation.”

The anti-SLAPP statute — similar to ant-SLAPP laws in other states — is designed to protect political activists from being harassed by their well-heeled targets, who can afford to abuse the legal system as a form of intimidation. The law specifically states that “petitioning” activity is protected. Hollander’s lawyer, Harvey Shapiro, argues that the grassroots advocacy journalism Hollander engaged in qualifies as “petitioning” in the sense that she was attempting to influence government decisions.

The implications for bloggers and citizen journalists are potentially huge. Not only are such folks frequently motivated by their strong opinions on local issues, but they are far more vulnerable to being damaged by a meritless libel suit than would an established news organization. (Please note that I am not saying Fustolo’s suit is meritless. I am merely saying that, if it is, then Hollander deserves to be able to use the anti-SLAPP law in order to persuade a judge to dismiss his claim.)

Unfortunately I will not be able to attend Monday’s argument because of a family matter. Assuming all systems are go, I’ll be watching the webcast instead.

An activist-journalist SLAPPs back

Adam Gaffin has posted an excellent summary of an important press-freedom case that will be argued before the state’s Supreme Judicial Court on Monday.

Fredda Hollander, an activist-journalist who once wrote for a local newspaper called the Regional Review, is arguing that a libel suit filed against her by a North End developer should be thrown out on the grounds that it amounts to harassment illegally aimed at silencing her.

The developer, Steven Fustolo, counters that the law on which Hollander is basing her claim — a state law that bans “strategic lawsuits against public participation” — was never intended to protect journalists.

Disclosure: I was a paid expert for Hollander, writing an affidavit arguing that community-based advocacy journalism should be protected under the so-called anti-SLAPP law.

Bring lots of quarters


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

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.

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