Tag: Free speech

Crowdsourcing Severin

In today’s Boston Herald, Jay Severin writes: “Just this week the august Columbia School of Journalism presented a panel on public speech. A Harvard law professor listed various types of speech that must be made illegal.”

I’d like to track this down. I’ve searched Google and Google News and tried a couple of things on LexisNexis — nothing so far. Does anyone know what Severin is talking about?

Case closed: Media Nation’s readers come through again. Carl noted that there was a panel discussion at Columbia recently featuring the notorious anti-speech activist Catharine MacKinnon. I’d seen the same thing, but she’s not at Harvard. Except that she is: Steve discovered that MacKinnon is the Roscoe Pound Visiting Professor of Law at Harvard Law School.

Zapping free speech

A brief Associated Press item (scroll down) in the Boston Globe this morning led me to the Rutland Herald, which reports that the police chief in Brattleboro, Vt., has been fired in part because of questions over the Tasering of two non-violent protesters last summer.

Herald reporter Susan Smallheer writes the following about an internal investigation that was conducted into former police chief John Martin’s conduct:

The findings of fact repeatedly mention the Tasering of two protesters, who were then arrested and charged with unlawful trespass for refusing to leave private property on Putney Road. According to the findings of fact, Martin received a one-day suspension for failing to provide leadership to his officers during that incident.

According to the report, Martin was at home during the Tasering and arrests, or was already headed to a meeting in Montpelier with Vermont State Police. The town said Martin gave conflicting information about where he was that morning — at home or on the road.

The two protesters, Jonathan Crowell and Samantha Kilmurray, have since hired an attorney, who has said he plans to sue the town and the police department for excessive force.

This seems utterly unsurprising. Which is why I’m scratching my head over University of Florida student Andrew Meyer’s decision to apologize and admit to wrongdoing over an incident in which he was Tasered at a speech by Sen. John Kerry earlier this fall.

You’ll find the video here. Meyer was certainly being obnoxious, but that’s not a crime. I’m not sure why Meyer, like Crowell and Kilmurray, isn’t thinking about filing a lawsuit against the campus police.

Maybe there were previous offenses. The Independent Florida Alligator story doesn’t say. But there’s something here that just doesn’t add up.

Putting Hopkins in her place

As I had hoped, Massachusetts Appeals Court Judge Andrew Grainger used some pretty strong language in explaining why he overturned Superior Court Judge Merita Hopkins’ prior-restraint order against WHDH-TV (Channel 7). The Boston Herald’s Jessica Heslam quotes from Grainger’s opinion:

As the judge noted in her order, the injunction is without doubt a prior restraint on speech.

[Channel 7] does not argue that it should be granted official access to the autopsy records; rather, it seeks to broadcast information already in its possession.

Simply put, the inability of the press to require the government to disclose information that is not part of the public record does not support a restraint on speech with respect to information already known to the press.

Indeed and famously, the presumption against prior restraints on free speech has prevailed even when the materials at issue are stolen and deal with issues of national security.

Grainger goes on to observe that, in this particular case, Hopkins’ error was compounded by the fact that her order didn’t even accomplish its objective — as it turned out, Channel 7, which had an exclusive, wound up being the only news organization not to report on the autopsy results.

Grainger’s tough words should stand as a warning to any judge who’s thinking of emulating Hopkins. It’s not enough that she has been overturned. It’s crucial that judges not abuse their power to hold up a story for a day or so and then punt to a higher court. If Hopkins isn’t embarrassed, she ought to be.

In the Boston Globe, columnists Joan Vennochi and Kevin Cullen weigh in. Cullen, joining those of us who believe Hopkins should have recused herself, observes that Hopkins hasn’t always been as solicitous of privacy rights as she was with respect to the fallen firefighters.

And, believe it or not, he brings it all back to Whitey Bulger. Boston is indeed a small town.

Herald admonishes Hopkins

The Boston Herald has a splendid editorial today on Judge Merita Hopkins’ unconstitutional order preventing WHDH-TV (Channel 7) from reporting on the Boston firefighters’ autopsy documents. After asserting that Hopkins is the first judge to exercise prior restraint against the media since the Pentagon Papers case in 1971, the editorial continues:

There is no more sacred corollary to the First Amendment than the prohibition against prior restraint — something which apparently eluded Judge Hopkins. The news media are perfectly willing to take our lumps after the fact — fines, civil suits, even getting thrown in jail for refusal to name sources. That is often the price we pay for exercising those freedoms.

I’m not sure about the Herald’s Pentagon Papers citation. At the very least, we know that a federal district-court judge in 1979 stopped the Progressive magazine from publishing an article purporting to show how to build a hydrogen bomb, even though the article was based on publicly available reference materials.

Even so, the fact that the Progressive case invoked the specter of millions of people dying serves to underscore the trivial, ludicrous nature of Hopkins’ special favor to the firefighters union. The overturning of her ill-considered order shouldn’t be the end of this. Good for the Herald for speaking out.

I would like to watch Channel 7’s Andy Hiller, who has a commentary titled “Free Speech v. Privacy Rights” on the WHDH Web site. Unfortunately, I couldn’t get it to load despite trying several different tricks on both a Mac and a Windows-based PC. Perhaps you’ll have better luck.

Hopkins’ ruling overturned

Superior Court Judge Merita Hopkins’ chilling order prohibiting WHDH-TV (Channel 7) from airing its exclusive on the autopsy reports of two Boston firefighters has been overturned. John Ellement of the Boston Globe writes that Massachusetts Appeals Court Judge Andrew Grainger set aside Hopkins’ order with little comment, but that we can expect “a lengthier explanation” later.

I hope that explanation includes an acknowledgment that Hopkins ignored well-established First Amendment doctrine. Hopkins exercised prior restraint — censorship — in its rawest form. I also wonder, along with the Phoenix’s Adam Reilly, whether Grainger will say that Hopkins — former chief of staff and legal counsel to Mayor Tom Menino — should have recused herself from even considering the case.

Judge Hopkins’ shocking decision

Superior Court Judge Merita Hopkins issued a shocking decision yesterday. By stopping WHDH-TV (Channel 7) from reporting on autopsy reports that allegedly show two Boston firefighters killed in an August restaurant blaze had abused drugs and alcohol, Hopkins violated the most basic of First Amendment protections — the protection against prior restraint. (Boston Globe coverage here; Boston Herald coverage here and here.)

The courts — right up to and including the U.S. Supreme Court — have consistently ruled that when a confidential document ends up in the hands of the media, there’s nothing that can be done about it. The legal responsibility is on the keepers of those documents not to release them; the media, by contrast, have no legal obligation not to report on them.

There are many cases I could point to, but consider that of Jim Taricani, an investigative reporter for WJAR-TV (Channel 10) in Providence. A few years ago Taricani broadcast videotapes of an aide to then-mayor Buddy Cianci taking a bribe. The tapes had been sealed by a federal judge, Ernest Torres, and thus it was illegal for anyone to give those tapes to Taricani — a perfect analogy to the situation involving the autopsy reports yesterday.

Taricani was in big trouble with Torres — but not for broadcasting the material. That, the judge made clear, was absolutely protected by the First Amendment. Instead, Torres insisted that Taricani reveal his source, because it was that person, not Taricani, who had violated the law. Taricani refused, and was sentenced to home detention. (The source, later revealed to be defense lawyer Joseph Bevilacqua Jr., was punished as well.)

It could very well be that the journalists who revealed the contents of the autopsy reports in the matter of the Boston firefighters will be pressured to give up their sources as well. Those of us who champion a free press ought to be concerned about that, but at least it’s well-established legal terrain.

Judge Hopkins, on the other hand, ought to be sent to her corner and forced to repeat 50 times: “Congress shall make no law … abridging the freedom of speech, or of the press.”

More: Here’s the text of Near v. Minnesota, the 1931 decision by the U.S. Supreme Court in which prior restraint was deemed a violation of the Constitution in almost all instances. The exceptions — national security, obscenity and incitement — are narrowly drawn, and obviously do not come within a mile of the Boston case.

A victory for free speech

Tufts University president Lawrence Bacow deserves a lot of credit. Earlier this week, he issued a ringing endorsement of freedom of speech on campus by reversing the punishment that had been handed out to a conservative student publication by a faculty-student committee.

According to the Boston Globe, Bacow overturned a decision that required editors of The Primary Source to put bylines on all articles and editorials. Unfortunately, he left in place a ruling that the publication had engaged in “harassment” and “creating a hostile environment” by running racially insensitive materials. But that’s symbolic. Anonymous speech, on the other hand, is a crucial right.

I wrote about the Tufts case in the Phoenix’s “10th Annual Muzzle Awards” earlier this summer, picking up on previous work by Harvey Silverglate and Jan Wolfe. There’s no question that The Primary Source’s sins against political correctness — which began with the editors’ publishing a mock Christmas carol called “O Come All Ye Black Folk” — were demeaning and sophomoric. But so what?

As the Tufts Daily editorialized at the time:

[H]olding others accountable must not mean threats, either implicit or explicit, of censorship; it must not mean tying funds to “behavior”; it must not mean dictating the style, format or attribution of content. The freedoms we treasure are most honored when we hold others accountable through words of our own, through debate and through the preservation of an open forum for ideas — even ideas we find objectionable.

Offended students were free to ignore The Primary Source, organize a protest or start their own publication. What they should not have done was haul the editors before a disciplinary committee, hector them and approve official sanctions against them. Bacow, at least, recognizes that.

Update: Silverglate and Wolfe praise Bacow for reversing the “no anonymity” provision, but criticize him for allowing the “harassment” finding to stand. They write: “An ominous sword of Damocles still hangs over the head of any Tufts student who wishes to make a social or political point by making fun of someone. Colleges need to learn that poking fun at a sacred cow doesn’t always mean the poor animal’s being harassed.”