A “disgruntled homophobic Middle School janitor.” The Massachusetts legislature, which has resolutely refused to strengthen our notoriously weak public records law. A Rhode Island city councilor who threw a critic out of a public meeting. A Malden charter school that refused to turn over public records on the patently absurd grounds that it’s not a public school.
These are just a few of the people and institutions that I’ve singled out over the past year as recipients of the New England Muzzle Awards, my annual Fourth of July round-up of transgressions against freedom of expression.
From 1998 to 2012, I wrote these up for the late, much lamented Boston Phoenix. Then, from 2013 to 2022, the Muzzles were hosted by GBH News. I decided to call it a wrap with the 25th-anniversary edition. But then I began to write up Muzzles as they came to my attention rather than saving them all for Independence Day. What follows are Muzzle Awards I’ve handed out since last June.
Kudos, as always, to my friends Harvey Silverglate, who conceived of this annual feature all these years ago, and Peter Kadzis, who edited all 25 editions. They were inspired by the Jefferson Muzzles, which no longer are awarded. Here in New England, though, their spirit lives on.
At a time when democracy itself is under threat, defending the First Amendment is more important than it’s ever been. The envelopes, please.
Sports builds character, we are told over and over again. And yet Massachusetts has been hit with multiple cases of racist, homophobic harassment aimed at high school athletes.
🗽The New England Muzzles🗽
The leading journalist tracking those cases is Bob Hohler of The Boston Globe, who’s reported on horrifying cases in Danvers, Woburn, Duxbury and elsewhere. Yet his efforts to dig deeper have been improperly thwarted by the Massachusetts Interscholastic Athletic Association. According to Hohler, the MIAA has refused to turn over incident reports in response to a public records request even though the secretary of state’s office has ruled that those records are, indeed, public. Hohler writes:
Details of the allegedmisconduct remain untold because the MIAA denied the Globe’s request for copies of the incident reports. The denial follows a ruling by the Secretary of State’s office in November that the MIAA, despite the organization’s objections, is a public entity subject to the state’s public records law.
MIAA executive director Bob Baldwin told Hohler that his organization has chosen to ignore the public’s right to know because officials don’t want to discourage schools from reporting incidents of harassment. Yet the lesson of past incidents is that reforms often don’t occur without exposure. For instance, it was only after Hohler reported that Danvers officials had failed to respond to a “toxic team culture” on the boys’ varsity hockey team that the attorney general’s office investigated and local leaders agreed to a series of reforms centered around policies and training. Hohler’s reporting was also followed by several departures, including the retirement of School Supt. Lisa Dana.
More than anything, Hohler’s report on the MIAA this week underscores the inadequacies of the Massachusetts public records law. There are few consequences for officials who refuse to comply with the law, even when they ignore a direct ruling to turn over public documents, as the MIAA is reportedly doing with Hohler and the Globe.
According to Hohler, the MIAA “has received 50 reports involving discrimination, harassment, or bullying — nearly one a week on average while school has been in session — since the organization began requiring its 380 member schools to file discriminatory incident reports starting with the winter season in late 2021.” The public deserves to know more about those reports.
The future of the New England Muzzle Awards
This is the time of year when I would be putting the finishing touches on the New England Muzzle Awards, an annual Fourth of July feature that highlights outrages against freedom of speech in the six New England states. From 1998 through 2012, the Muzzles were published in The Boston Phoenix. After the Phoenix closed in 2013, they were hosted at GBH News.
The one constant over all those years had been my friend Peter Kadzis’ role as editor at both the Phoenix and GBH. Following Peter’s well-earned retirement, I’ve decided that last year’s 25th anniversary edition will be the last. I’ll still track the kinds of stories that I used to highlight in the Muzzles, and the MIAA story would have been a natural. But rather than an annual round-up, I’m going to write them up in real time for Media Nation. You’ll notice a weak attempt at a logo near the top of this post. I’ll try to come up with something better.
I also want to express my appreciation to GBH News for hosting the Muzzles during the final 10 years of their existence, and to civil-liberties lawyer Harvey Silverglate, my friend and occasional collaborator, for coming up with the idea all those years ago.
This week, on the second “Beat the Press” podcast, we talk about the latest mishegas at CNN, as number-two executive — make that former number-two executive — Allison Gollust walks the plank.
Other topics include a discussion of how much responsibility Spotify should take for Joe Rogan’s vaccine disinformation and n-word-spewing mouth; privacy concerns over the death of comedian Bob Saget; and a conversation with civil-liberties lawyer Harvey Silverglate, the co-founder of FIRE, the Foundation for Individual Rights in Education.
Plus: Rants & Raves are back!
Hosted, as always, by Emily Rooney, with Jon Keller, Lylah Alphonse and me. You can listen to “Beat the Press” on Apple and wherever fine podcasts are found.
For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.
The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.
Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.
Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.
There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.
After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)
There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.
So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”
In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)
The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?
A couple more points about the Palin case.
First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.
Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.
It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”
Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.
I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.
Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”
Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.
Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.
Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.
Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.
It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.
As an alumnus of “Beat the Press,” which was canceled over the summer, I’ve been curious about what GBH-TV (Channel 2) would do about filling the Friday 7 p.m. time slot.
The station ran a local politics show during the fall that was supposed to end on Election Day but was instead extended through the rest of the year. Now it looks like that show is being made permanent, with a new name — “Talking Politics.” The show will be focused on the suddenly hot Massachusetts gubernatorial race.
Although I don’t know whether it’s deliberate (I suspect it was), the name conjures up the connections between GBH News and the late, great Boston Phoenix. The host, Adam Reilly, used to be the Phoenix’s “Talking Politics” columnist. GBH News senior editor Peter Kadzis, who’ll be part of the new show, was the editor of the Phoenix for many years.
Other Phoenix alums associated with GBH News include former “Talking Politics” columnists Jon Keller and David Bernstein as well as civil-liberties columnist Harvey Silverglate. And, of course, yours truly. Might we consider renaming my GBH media column “Don’t Quote Me”?
The full press release follows.
BOSTON (December 2, 2021) – GBH News today announced the launch of Talking Politics, a new weekly show that will take a deep dive into local politics, with a special focus on the 2022 Massachusetts gubernatorial race. Hosted by GBH News politics reporter Adam Reilly, the panel-based series will feature conversations with local political newsmakers, influencers, analysts and activists. GBH News City Hall reporter Saraya Wintersmith, Statehouse Bureau reporter Mike Deehan and politics editor Peter Kadzis will also be key contributors. Talking Politics debuts on Friday, December 3 at 7:00 p.m. on GBH 2 and streaming on the GBH News YouTube Channel.
“Audiences throughout Massachusetts know that the issues being debated on Beacon Hill have the potential to directly impact their lives. And it’s not just the issues, but the individuals who are shaping these discussions,” said Pam Johnston, general manager of news at GBH. “With this week’s announcement from Governor Baker that he will not seek reelection, the race to lead Massachusetts is wide open. Talking Politics will bring audiences compelling conversations and deeply reported local journalism about political issues across the Commonwealth with the 2022 gubernatorial race at center stage.”
Talking Politics builds on the foundation created by Boston’s Race Into History, the pop-up television show integral to GBH News’ multi-platform initiative focused on the 2021 Boston Mayoral Race. In each week’s half-hour episode, Talking Politics will take a broader look at state and local politics and their impact on the issues that matter. The series will investigate a wide range of political developments across the Commonwealth including the unfolding gubernatorial race, the new leadership in place in key Massachusetts cities, and the administration of Boston Mayor Michelle Wu.
The debut episode will look at Massachusetts Gov. Charlie Baker’s decision to not seek reelection in 2022 after leading the Commonwealth for two terms. Host Adam Reilly and guests will also provide an update into the campaigns of the race’s declared candidates, Republican Geoff Diehl, and Democrats Danielle Allen, Ben Downing, and Sonia Chang-Díaz.
Audiences can stay up-to-date with local political coverage by subscribing to the GBH News politics newsletter. GBH News has been expanding its political coverage over the past year including a multi-platform journalism initiative focused on Boston’s mayoral race and regular appearances by elected officials on Boston Public Radio.
In the spring of 1998, civil-liberties lawyer and First Amendment advocate Harvey Silverglate had an idea: Why not single out enemies of free speech in the pages of The Boston Phoenix? Harvey was a Phoenix contributor; I was the media columnist. We refined Harvey’s idea and, at his suggestion, named them the Muzzle Awards — borrowing the name from the Thomas Jefferson Center for the Protection of Free Expression (now defunct) and restricting them to the Boston, Worcester, Portland and Providence areas, where we had papers.
We decided on the Fourth of July for two reasons — first, to emphasize that the Muzzles were an expression of patriotism; second, so that the rest of the news staff could pretty much take the week off. The first annual Muzzle Awards were published on July 3, 1998. Among other winners, we singled out of the FCC for shutting down Radio Free Allston, a pirate station that served the community at a time when it was even harder to get a license for a low-power FM operation than it is today; the town of Plymouth, where police roughed up Native American protesters; and Walmart, for refusing to sell CDs that carried a parental warning label.
The Muzzles turned out to be a hit. David Brudnoy and, later, Dan Rea would have me on to talk about them on WBZ Radio (AM 1030) and — I’d like to think — we helped educate our readers about the importance of free expression.
I continued writing the Muzzles after leaving the Phoenix for Northeastern in 2005. At that point, I stopped singling out colleges and universities because I thought it would be a conflict of interest. Harvey began writing the Campus Muzzle Awards as a sidebar.
Then, in the spring of 2013, The Boston Phoenix closed abruptly, and we needed a new home for the Muzzles. Fortunately my friends at GBH News stepped up and have been hosting them ever since. Although The Worcester Phoenix was long gone at that point, the Muzzles continued to appear in the Providence and Portland papers until they, too, shut down. (The Portland Phoenix was revived a couple of years ago under new ownership and appears to be doing well.) And here’s a pretty astonishing fact: Peter Kadzis has been editing the Muzzles from the beginning, first at the Phoenix, now at GBH.
This year’s New England Muzzle Awards, published on July 1, are, like their predecessors, a reflection of the era. The Black Lives Matter protest movement that was revived after the police killings of George Floyd and Breanna Taylor figure in several of the awards — from Boston and Worcester police officers who brutalized peaceful demonstrators, to racial justice protesters in Burlington, Vermont, who stole and destroyed copies of a newspaper whose coverage they were unhappy with, to Sheriff Scott Kane of Hancock County, Maine, who banned a desperately needed drug-counseling service from his jail after the nonprofit posted a statement on its website in support of Black Lives Matter.
We have some well-known winners, too, including Secretary of Labor Marty Walsh, Fox News talk-show host Tucker Carlson and former President Donald Trump. The town of Plymouth is back as well — this time for threatening punitive fines against a Trump supporter who’d put a sign critical of President Joe Biden on his lawn.
This is the 24th year of Muzzle Awards, so next year will be a landmark. Will they continue after their 25th anniversary? Right now I couldn’t tell you. I have put together an index of all 24 years in case you’re interested in what previous editions looked like. Link rot had claimed some of them, but I was able to overcome that thanks to the Internet Archive.
The animating spirit of the Muzzles was best expressed by Supreme Court Justice Oliver Wendell Holmes Jr. in 1929: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
It’s been a long ride — and I’ve already got a candidate for the 2022 edition.
This post was sent out last Friday, June 9, as part of the Media Nation member newsletter. If you would like to become a member, just click here. The cost is $5 a month.
Social justice or free speech? The New York Times offers an in-depth look at the struggles inside the ACLU. My friend and occasional collaborator Harvey Silverglate is among those interviewed.
Last weekend we had a chance to see “The B-Side,” Errol Morris’ wonderful documentary about the Cambridge portrait photographer Elsa Dorfman. I know Elsa through her husband, Harvey Silverglate, my friend and occasional collaborator. She also once took our family’s picture for a Boston Phoenix article. Our son, Tim, took Elsa’s photo a few years ago when he was attending photography school.
Dorfman is warm and outgoing, and her photos reflect that. Now mostly retired, she is best known for her work with a large-format Polaroid camera that takes 20-by-24-inch photos. And though she is known for her portraits of artists such as Allen Ginsberg and Bob Dylan, she’s also taken photos of literally hundreds of ordinary families who found their way to her studio. In the film, she comes across as intensely proud and self-aware, yet still the same person who once sold her photos out of a shopping cart in Harvard Square.
Here’s some backstory that the film does not explain: Several years ago Morris wrote a book about Dr. Jeffrey MacDonald, the former Army doctor serving a life prison term after being convicted of murdering his pregnant wife and young children. The book brought Morris into contact with Silverglate and Dorfman, as Silverglate is a member of MacDonald’s legal team. As Morris’ book, “A Wilderness of Error,” clearly shows, MacDonald did not receive a fair trial and may actually be innocent. (I reviewed the book for BookForum.)
Morris is a master storyteller, and Dorfman is an ideal subject. As Richard Brody wrote recently in The New Yorker, Dorfman is “a remarkable presence, a cinematic character whose comments distill a lifetime of wisdom, self-awareness, frustration, and survivor’s pride.” Go see it.
The public square has long since gone private. As far back as 2003, we bestowed a New England Muzzle Award upon a mall that ordered a 60-year-old customer arrested and charged with trespassing because he refused to remove his antiwar T-shirt — a T-shirt he’d bought at said mall.
These days, though, the idea that privately owned shopping centers have superseded the village common seems almost quaint. The public square has gone virtual. Unaccountable internet companies control our discourse and censor our voices for reasons that can seem both absurd and mysterious.
We live in a time in which YouTube restricts access to a pro-Israel video made by the famed Harvard law professor Alan Dershowitz. In which the Museum of Fine Arts’ Instagram account runs afoul of an anti-nudity rule that applies not just to pornography but to art. And in which the Boston Police Department proposes using sophisticated software to monitor our activities on social media — for our own good, of course. The BPD backed down, but you can be sure that won’t be the last we hear of it.
It seems somehow appropriate that on this, the 20th anniversary of the Muzzle Awards, assaults on freedom of expression are taking a technological turn. But there are still plenty of instances of old-fashioned suppression — such as a publicly funded charter school in Malden whose ban on hair extensions affects black female students almost exclusively; Maine Gov. Paul LePage, who has refused to turn over public records about his support for states seeking to discriminate against same-sex couples and transgender youth; and a New Hampshire publisher who censored information about his own newspaper’s real-estate dealings.
The Muzzle Awards, launched in 1998, were published for many years by the late, great Boston Phoenix, which ceased publication in 2013. This is the fifth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
The envelopes, please.
YouTube: The Internet Giant Censors Videos By Alan Dershowitz And Others
Harvard Law School professor Alan Dershowitz’s staunchly pro-Israel views are well known. But if he had to rely on YouTube to spread his message, he might find himself crying in the wilderness.
Last October, Hiawatha Bray reported in The Boston Globe that educational videos featuring Dershowitz and several other speakers had been restricted by YouTube, an internet giant that, in turn, is owned by Google, an even larger internet giant. The videos were produced by Prager University, an educational service begun by Dennis Prager, a conservative radio talk-show host.
As Bray noted, none of the videos included any foul language, violence, or sexually explicit content. Nor could it be determined why they were suppressed. Had the videos somehow run afoul of Google’s notoriously opaque algorithms? Had someone flagged the content as objectionable?
Not that it was especially difficult to watch the videos. The content was blocked only for users who had turned on YouTube’s “restricted” mode, which, according to the website, “hides videos that may contain inappropriate content flagged by users and other signals.” All anyone would have to do is turn it off. Still, it sent a signal that there was something wrong with what Dershowitz and the others were saying.
In a follow-up piece for National Review, Prager wrote that 21 videos had originally been restricted, and that five had been restored. The topics included radical Islam, abortion rights, and a defense of police against charges of racism. “Obviously, … the explanation is not algorithms that catch violence and sex,” Prager wrote. “Rather, Google/YouTube doesn’t want effective (each video has at least 1 million views) conservative videos.”
He added that Dershowitz’s video “Israel’s Legal Founding” had been restored because of negative publicity. If it was, it was later blocked again — as I discovered when I tried accessing it in restricted mode recently.
Google, like Facebook, has enormous power and influence, and has become far more than a corporation with its own agenda and interests. It’s a place where we spend a significant amount of our lives. It’s long past time for Google to recognize its free-speech obligations.
Bill Evans: The BPD Commissioner’s Officers Choose Surveillance Over Liberty
In the never-ending struggle between security and liberty, it is the job of the Boston Police Department to err on the side of security. And it is our job to push back. Thus has Commissioner Bill Evans earned a Muzzle for allowing his officers to infringe on the free-expression rights of protesters.
According to The Boston Globe, this past March, members of an organization calling itself the Keep it Real 100 for Affordable Housing and Racial Justice showed up at a board meeting of the Boston Planning and Development Agency to complain about the lack of affordable housing in a development plan for the Forest Hills-Jackson Square area. Officers began video recording some of the protesters, creating what some witnesses said was an atmosphere of intimidation.
Officer Rachel Maguire, the BPD spokeswoman, compared the situation to the right that citizens have to record officers, and said such recording often takes place at large gatherings such as the Boston Marathon and outdoor demonstrations. Needless to say, though, there is a considerable power differential between police officers and citizens. Citizens recording officers simply cannot be compared to officers recording citizens. And a public meeting in City Hall is a very different matter from a huge outdoor gathering.
Fortunately, the BPD backed down from yet another attempt to monitor people exercising their right to free expression — a proposal to sift through people’s social-media activities, opposed by the ACLU of Massachusetts. But surveillance of activities protected by the First Amendment is no way to protect public safety. Evans needs to find a better solution.
Jim Konig: A Publisher Who Believes That All The News About His Newspaper Isn’t Fit To Print
A community newspaper has an obligation to be open and transparent about its operations. After all, the local paper often enjoys a near-monopoly on news. If its owners choose to suppress important information, there is virtually no other place to learn about it.
So when Roger Carroll, the executive managing editor of The Telegraph of Nashua, New Hampshire, resigned last fall, eyebrows were understandably raised. In a radio interview, Carroll told Nancy West, founder of the nonprofit news organization InDepthNH, that he quit after publisher Jim Konig ordered him to delete parts of a story about the paper’s move to new headquarters in downtown Nashua.
According to the print version of the article, The Telegraph’s new building was purchased for $650,000 and had an assessed value of $1.8 million. Those details, as well as the fact that the paper is owned by Ogden Newspapers of Wheeling, West Virginia, were removed from the online version.
Carroll said Konig told him the order to delete those facts had come from West Virginia. But Konig wins the Muzzle, as he refused an opportunity to clarify matters when reached by InDepthNH and the New Hampshire Union Leader.
“I thought this kind of censorship showed a staggering disrespect to the role of the newsroom and to the Telegraph’s readers,” Carroll told West in a follow-up interview. Reached by the Union Leader, Carroll added, “It felt like censorship — that is what it felt like.”
Konig, meanwhile, has moved on, and Carroll is now working for Vermont’s Rutland Herald. “Leaving those folks behind was very hard,” Carroll told the investigative news site VTDigger about his decision to quit his job at The Telegraph. “But at the end of the day I had to be able to look in the mirror.”
Mystic Valley Regional Charter School: Its Prohibition Against Hair Extensions Is Racially Discriminatory
A school’s dress code includes a provision that is written in seemingly neutral language, but in practice affects black students while having little impact on white students. That’s discrimination, and it’s not a difficult concept to understand.
Unless you are part of the leadership at the Mystic Valley Regional Charter Schoolin Malden, which has grudgingly, and only temporarily, suspended its ban on hair extensions under pressure from Massachusetts Attorney General Maura Healey.
The taxpayer-supported school, which serves Malden and several surrounding communities, has an extensive dress and grooming code that school officials say is aimed at preventing more affluent students from flaunting their wealth. But the families of some black female students argue that long braids, sometimes supplemented with extensions, are an expression of cultural pride.
Black students with long braids and dreads were taken to the office and inspected to see if they were wearing extensions. Punishment was meted out, including detention and suspension from activities such as athletics and the prom. White students with dyed hair were reportedly not subjected to such treatment. Despite Healey’s investigation, protests, and complaints from the ACLU and the NAACP, the school has backed down only partially and with great reluctance, displaying an unusually obtuse sense of racial insensitivity.
A letter released by the school after the trustees voted to suspend the policy read in part: “Some have asserted that our prohibition on artificial hair extensions violates a ‘cultural right,’ but that view is not supported by the courts, which distinguish between policies that affect a person’s natural ‘immutable’ characteristics and those that prohibit practices based on changeable cultural norms.”
As my “Beat the Press” colleague Callie Crossley recently wrote in criticizing Mystic Valley: “For black women, hair is a cultural flashpoint, never as simple as ‘it’s just hair.’ Those of us who wear our hair in afros, twists, locks or braids are often subject to unsolicited commentary, sometimes overtly racist.”
Free expression covers a wide variety of activities, including hair and dress. It would be bad enough if Mystic Valley’s policy were not racially discriminatory. But it is, and that makes it indefensible on any grounds.
Cardno ChemRisk: The SJC Sees Through Its Attempt To Use Libel As A Tool Of Intimidation
The libel laws are intended to give people and organizations a chance to fight back against false, defamatory statements. In the wrong hands, though, libel can be wielded by the powerful as weapon to harass critics.
Such was the situation that two environmental activists found themselves in after they wrote an unpaid article for The Huffington Post. The 2013 article, by Karen Savage, who at the time was a Boston middle-school teacher, and Cherrie Foytlin of Rayne, Louisiana, claimed that a controversial consulting company called Cardno ChemRisk had ties to the oil industry. Those ties, they said, compromised the company’s ability to conduct a study as to whether workers involved in the cleanup of the 2010 Deepwater Horizon explosion were exposed to harmful levels of hazardous airborne substances.
ChemRisk wins a Muzzle Award for filing a libel suit against the two women — something The New York Times notes that it did not do even when tough reporting on the company by The Wall Street Journal in 2005 became a storyline in the environmental thriller “Erin Brockovich.” The Times article suggested that ChemRisk was more comfortable taking on two unknown activists than the powerful Journal, although a lawyer for the company denied it.
In February of this year the Massachusetts Supreme Judicial Court threw out the lawsuit, essentially agreeing with the two women, who had invoked the state’s anti-SLAPP law (Strategic Litigation Against Public Participation), that ChemRisk had sued solely in order to silence and intimidate them. According to the website Law360, the SJC ruled that ChemRisk’s claim was “devoid of reasonable factual support or arguable basis in law.”
Despite the victory, the lawsuit may have served its purpose by warning other activists of the consequences they might face if they take the risk of speaking up.
Bill Gardner: New Hampshire’s Secretary Of State Keeps The Absurd ‘Ballot Selfie’ Ban In The News
Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.
In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?
A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.
Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.
Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.
The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”
Paul LePage: Maine’s Governor Refuses To Release Records About His Right-Wing Crusades
You’d think that Maine’s Republican governor, Paul LePage, would be proud to share information about assistance he gave to other states in their quest to squelch same-sex marriage and transgender rights. Apparently not. Because in May, the Portland firm Andrew Schmidt Law had to file a lawsuit under the state’s Freedom of Access statute following what it said was a failed six-month quest to obtain records related to LePage’s out-of-state political activism.
Also sought were records pertaining to LePage’s decision last fall to pull out of the federal government’s refugee resettlement program.
According to the Portland Press Herald, LePage supported Mississippi officials in their bid to overturn a federal judge’s ruling that public employees could not refuse marriage licenses to same-sex couples. LePage also signed on to a lawsuit filed by 10 states after the Obama administration ordered public schools to stop discriminating against transgender students with regard to bathroom and locker-room access.
LePage is a notorious homophobe. Last year The Advocate, an LGBT publication, posted some NSFW comments LePage made to a state legislator in which he defended himself against charges that he’s a racist by going off on a vicious gay-bashing rant.
As for the public records sought by Andrew Schmidt Law, Peter Mancuso, a lawyer with the firm, told the Press Herald that the governor’s office had not turned them over despite promising to do so by March. Nor did the LePage administration respond to several email requests from the paper seeking comment.
Instagram: The Museum Of Fine Arts Runs Afoul Of The Photo-Sharing App’s Ban On Nudity
YouTube is not the only internet behemoth upon whom we are bestowing a Muzzle Award. So is Instagram, the photo-sharing app owned by Facebook. As with YouTube and its parent company, Google, the Instagram example highlights the erosion of freedom that can occur when our public discourse is turned over to unaccountable corporations.
The Boston Globe’s Malcolm Gay reported in April that Instagram had removed three images of nude models posted by the Museum of Fine Arts to promote an exhibit of photographs by Imogen Cunningham. The images violated Instagram’s one-size-fits-all terms of service, which prohibit photos of female nipples. Similar cases involving the Philadelphia Museum of Art and New York’s Metropolitan Museum of Art were also reported.
“I’m stunned. These images are so subtle and beautiful and so abstract,” MFA photography curator Karen Haas told the Globe. “They’re all about shapes — about turning the body into something that’s really confounding and difficult even to read as a body.”
But though the Muzzle goes to Instagram, surely a Muzzle Jr. is in order for the Globe. Because the artwork it used to illustrate the story was itself a censored, G-rated version of Cunningham’s photos. As my “Beat the Press” colleague Emily Rooney ranted several days after the Globe’s story was published, “They ruined their own story by doing the exact same thing they were accusing Instagram of doing. It was embarrassing, I thought.”
New Haven Police Department: A Photojournalist Is Arrested And Charged Following ‘A Ten-Second Misunderstanding’
For years, police officers in New Haven have struggled with the idea that journalists and ordinary citizens have a First Amendment right to video-record and photograph their interactions with the public. In 2011 I accompanied Paul Bass, the editor and founder of the online New Haven Independent, as he covered a training session for officers following some egregious violations of citizens’ rights, which I wrote about in my book “The Wired City.”
Sadly, the New Haven Police Department still doesn’t get it. Last December, Independent reporter David Sepulveda was arrested and charged with two misdemeanors — interfering with police and third-degree trespassing — after he took photos of a pressure cooker suspected of being a bomb (it wasn’t) and didn’t vacate the scene quickly enough when ordered to do so.
“We recognize that police have legitimate concerns when setting a perimeter around a scene and urge journalists to respect those boundaries, but an arrest is extreme when less draconian remedies would have sufficed,” the Connecticut chapter of the Society of Professional Journalists said in a statement.
In an opinion piece, Bass apologized and conceded that Sepulveda, 64, should have been more responsive and polite in his dealings with the police. But there was no excuse for their subsequent actions, which, according to Bass, included confiscating Sepulveda’s camera and attempting to seize its memory card; wrongly asserting that he had walked into a blocked-off area; and claiming that they didn’t know he was a reporter even though he was wearing a press tag around his neck. As Bass wrote, the police “turned a ten-second misunderstanding into a criminal charge.” He added: “The police had reason to be angry. They didn’t have good reason to handcuff, detain, and arrest a reporter.”
The officer who arrested Sepulveda and the supervisor who seized his camera were cleared by internal-affairs investigators. And so it goes — until the next time the city’s unchastened police encounter someone with a camera and an attitude.
Peter Kilmartin: Rhode Island’s Attorney General Clashes With Governor Over Revenge Porn And Curt Schilling
So-called revenge porn — sexually explicit photos posted on the internet as a form of harassment — is a serious offense. But Rhode Island Attorney General Peter Kilmartin has taken an unserious approach to dealing with it, filing a bill in 2016 so unconstitutionally broad that it was vetoed by Gov. Gina Raimondo, a fellow Democrat. He then turned around and filed it again.
According to The Westerly Sun, Raimondo objected to Kilmartin’s proposal because it “could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, [the legislation] does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.” Kilmartin, playing to the cheap seats, responded by saying “it is a disgrace that the Governor would put the interests of Hollywood elites before that of Rhode Island victims of this horrendous crime that has lifelong impact.”
But as Steven Brown, executive director of the ACLU of Rhode Island, put it in an emailed comment, “These elites apparently include the ACLU, the RI Press Association, the New England First Amendment Coalition, and the Media Coalition, all of whom testified against his bill and in favor of hers. He would rather pass a bill that will end up providing no protection to victims because it will be struck down rather than agree to a ‘watered down’ constitutional one.”
Revenge porn is not the only issue over which Kilmartin and Raimondo have clashed. Raimondo has called for the release grand jury records involving the 38 Studios investigation, better known as the Curt Schilling debacle. Kilmartin objected, the Providence Journal reported, arguing that releasing “names and statements of cooperating witnesses” could “chill the willingness of witnesses to come forward to law enforcement in the future, particularly in cases of public corruption.”
Grand jury deliberations are traditionally kept secret. But in a friend-of-the-court brief, the ACLU of Rhode Island laid out a compelling argument for why the Schilling case should be treated differently.
“Unlike a typical grand jury investigation involving allegations of private crime by private individuals,” the brief said in part, “the investigation of 38 Studios addressed a matter of public policy of extraordinary importance that involved the decision by the state to invest $75 million in public funds. In a well-functioning democracy, the people have a need to know how the state decides to spend public funds, and this need vastly outweighs any minimal interests in secrecy present here.”
President Reagan moments before being shot by John Hinckley. Photo (cc) by Thomas Hawk.
I’m not outraged that a federal judge has decided to release John Hinckley, who tried to assassinate President Ronald Reagan in 1981. But I don’t think it’s a good idea, either. Hinckley grievously wounded the president; say what you will about Reagan’s seemingly complete recovery, but there was plenty of evidence that he was never the same. Hinckley also injured Reagan’s press secretary, Jim Brady, leading to Brady’s premature death in 2014.
This isn’t a yes-or-not situation; Hinckley already enjoys considerable freedom, and he apparently has not abused it. He’ll still be under some supervision. Still, I don’t think the government should go any further for two reasons:
1. Federal judge Paul Friedman ruled that “the preponderance of the evidence” shows “that Mr. Hinckley will not be a danger to himself or to others.” This strikes me as a value judgment, and that Friedman had the discretion to rule otherwise on the grounds that anyone who did what Hinckley did will always be a danger to others.
2. Hinckley was found not guilty by reason of insanity. That outraged a lot of people who wanted to see him go to prison. In fact, it was the right thing to do, and it ought to happen more frequently. Unfortunately, granting freedom to someone as notorious as Hinckley will only make it more difficult for defense lawyers to make the already-difficult case that their clients should not be held criminally responsible.
Hinckley should be held in a safe, humane, and secure facility. He should not be freed.
More: Harvey Silverglate writes, “What you did not mention is that the release of Hinckley will embolden supporters of the death penalty.” Indeed it will.
These are just a few of the people and institutions that I’ve singled out over the past year as recipients of the New England Muzzle Awards, my annual Fourth of July round-up of transgressions against freedom of expression.
