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These days, though, the idea that privately owned shopping centers have superseded the village common seems almost quaint.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.”
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.
Please have a look at the 18th edition of the New England Muzzle Awards — launched in 1998 at the late, great Boston Phoenix and now hosted exclusively by WGBHNews.org. The Campus Muzzles, as always, are helmed by civil-liberties lawyer Harvey Silverglate.
The Boston Globe today offers some powerful arguments against executing convicted Boston Marathon bomber Dzhokhar Tsarnaev. Metro columnists Kevin Cullen and Yvonne Abraham weigh in, as do the paper’s editorial page, civil-liberties lawyer Harvey Silverglate and retired federal judge Nancy Gertner. (Columnist Jeff Jacoby has previously written in favor of death for Tsarnaev.)
Over at the Boston Herald, the message is mixed. In favor of the death penalty are columnist Adriana Cohen and editorial-page editor Rachelle Cohen. The lead editorial calls for the death penalty as well. Columnist Joe Fitzgerald is against capital punishment for Tsarnaev. Former mayor Ray Flynn offers a maybe, writing that he’s against the death penalty but would respect the wishes of the victims’ families.
As you may have heard, former state Probation Department commissioner John O’Brien and two underlings have been convicted in federal court of charges related to patronage.
In Massachusetts Lawyers Weekly, Harvey Silverglate and his legal assistant Daniel Schneider criticize U.S. Attorney Carmen Ortiz and other officials for transforming behavior they don’t like — behavior that, to be sure, was grotesquely corrupt — into a federal crime, even though patronage is perfectly legal under state law. (No, neither Silverglate, Schneider nor I am impressed that this was done via a legal theory criminalizing the system O’Brien used to facilitate the patronage rather than the patronage itself.)
More broadly, Silverglate explained how it’s done in his 2009 book “Three Felonies a Day: How the Feds Target the Innocent,” which I wrote about for The Guardian. As for Ortiz, she recently won her third consecutive New England Muzzle Award, now hosted by WGBHNews.org.
More: Even though I join Silverglate and Schneider in believing the legal case was dubious, the facts that were unearthed would make a jackal puke. Kudos to The Boston Globe for exposing this violation of the public trust.
Current, the trade website for people in public media, has posted a nice feature on the New England Muzzle Awards’ newish home at WGBHNews.org. I do want to point out that though The Boston Phoenix is no more, the Muzzles continue to be published at The Providence Phoenix and The Portland Phoenix. Also: my friend and co-conspirator Harvey Silverglate deserves all the credit for the Campus Muzzles, which are also mentioned in the article.
Photo by WGBH News.
U.S. Sen. Ed Markey, Rhode Island Gov. Lincoln Chafee, Massachusetts Gov. Deval Patrick and U.S. Attorney Carmen Ortiz (again) might consider running the other way when we try to present them with our coveted statuettes for dishonoring the First Amendment.
The 17th Annual New England Muzzle Awards are now online at WGBHNews.org and The Providence Phoenix. They should be up soon at The Portland Phoenix as well. This is the second year that WGBH has served as home base following 15 years at the late, great Boston Phoenix.
As always, the Muzzles are accompanied by an article on Campus Muzzles by my friend and sometime collaborator Harvey Silverglate. There are a couple of new touches this year as well: the WGBH design is responsive, which means it looks just as great on your tablet or phone as it does on your laptop; and WGBH reporter Adam Reilly, WGBHNews.org editor Peter Kadzis and I talk about the Muzzles on “The Scrum” podcast, which of course you should subscribe to immediately.
Peter, by the way, is a former editor of the Phoenix newspapers, and has now edited all 17 editions of the Muzzles.
A few thoughts about Michael Kinsley’s much-criticized New York Times review of Glenn Greenwald’s book “No Place to Hide,” an account of his role in the Edward Snowden leaks.
Kinsley is technically correct in asserting that the government has — and should have — the final word when it comes to deciding whether secret information should be made public. Thus I part company with the likes of Gawker’s Hamilton Nolan, who, in a post headlined “Michael Kinsley Comes Out Against Journalism,” fulminates: “Michael Kinsley does not believe that a free press should be allowed to [expose official secrets]. He believes that the decision to tell government secrets ‘must ultimately be made by the government.'”
It’s Nolan’s “should be allowed” that bears scrutiny. In fact, the Supreme Court has made it clear that the government may act to prevent secrets from being revealed if those revelations would cause a serious breach of national security. Here is how the Court put it in the 1931 case of Near v. Minnesota:
No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.
The government may also prosecute both leakers and journalists post-publication, as a majority of the Court all but invited the Nixon administration to do in the Pentagon Papers case — and as Harvey Silverglate explains in this 2006 Boston Phoenix essay.
If you think about it, how could it be otherwise? It’s so easy to conjure up scenarios involving nuclear weapons, terrorism and the like under which censorship and prosecution would be justified that it’s not even worth the effort to spell them out (although Chief Justice Charles Evans Hughes tried to do just that in Near).
But I emphatically part company with Kinsley over his sneering, dismissive tone, and his shocking failure to understand the role of a free press (or even a press that’s not quite as free as Hamilton Nolan imagines) in a democratic society. Because if the ultimate authority rests with the government, there are nevertheless times when leakers, individual journalists and the institutional press must stand up to the government and risk its wrath in order to serve the public interest. That’s what The New York Times and The Washington Post did in publishing the Pentagon Papers, the government’s own secret history of the Vietnam War.
And I would argue that that’s what Snowden, Greenwald, Barton Gellman (curiously absent from Special Agent Kinsley’s arrest warrant), The Guardian and The Washington Post did in exposing the NSA’s practices.
I wrote more about the legal background for The Huffington Post last June.
Photo (cc) by the Aspen Institute and published under a Creative Commons license. Some rights reserved.