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

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A pair of heartfelt tributes to the Boston Phoenix

I want to share with you two extraordinary reflections on the Boston Phoenix and what its loss means to the city and the region. There have been a lot of such reminiscences, and many of them have been terrific. But I look at these as putting a cap on it, unless I decide to expand on my own recent effort, which came off as more sterile than I would have liked.

Harvey Silverglate

Harvey Silverglate

The first, by Harvey Silverglate, appeared late last month in the final, online-only edition of the Phoenix. Harvey is a friend and an occasional collaborator. (We are currently brainstorming ways to keep the Phoenix Muzzle Awards alive, and we hope to have an announcement within a month or so.)

Harvey began writing his civil-liberties column for The Real Paper in the early 1970s. When Stephen Mindich, the Phoenix owner, absorbed The Real Paper into the Phoenix later in the decade, Harvey’s column was renamed “Freedom Watch,” the name it carried up until the end. I had the privilege of editing Harvey in the early 1990s. He writes in his final column:

It’s no surprise to me that assaults on freedom — the mainstay of my long-running column — have outlasted the newspaper I could always count on to publish even my harshest critiques of the criminal justice system. Unlike, it seems, the institutions that work hard to subjugate others, newspapers, which are essential to free the subjugated, are not immortal.

Make sure you read the whole thing — and check out the photos, taken by his wife, Elsa Dorfman, a wonderful portrait photographer.

Al Giordano

Al Giordano

The second piece, which I’ve been anticipating since the end of the Phoenix was announced, finally popped into view on Tuesday — a 4,000-word-plus reflection by Al Giordano, who covered politics (among other things) for the paper in the mid-1990s. I was the news editor for the early part of Al’s time at the Phoenix. We struggled over Al’s radical, activist inclinations and the more mainstream direction the Phoenix was then taking, and he describes those struggles accurately and fairly.

I always respected Al, and my admiration for him only grew after he left the paper, moved to Mexico and launched, which covers the so-called war on drugs from a Latin American perspective. When Al writes about the Phoenix crusading in his defense after he got sued by “narco-bankers,” he is referring in part to this article I wrote in 2001.

Al’s essay on the demise of the Phoenix is impassioned and, in parts, poetic. It was not meant to be excerpted, but I’ll take a shot at it anyway:

My success at manipulating daily newspapers had stripped from me any sense of myth or magic that dailies had so carefully cultivated among the reading public. I liked reporters but felt badly for them: Their mothers thought they were powerful, but they were really slaves to the daily deadline, which more often than not denied them the time to ponder or think about a story before having to put their name on it. Spared from the popular illusion that anyone could be Woodward and Bernstein if he could just get to a big-enough daily, I pointed my ambition elsewhere: The Phoenix job, for me, was the pinnacle, top of the heap. It was all I had aspired to be.

Al is a force of nature, and had a hugely positive influence on the newsroom and what readers saw every week. By the time he left, I had moved into the media columnist’s slot. I was sorry to see him go. But, as he writes, he “never stopped being part of the Phoenix family.”

Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.

Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

How news execs can avoid the online ad meltdown

Writing in Technology Review, the noted media critic Michael Wolff says Facebook is doomed — and is going to take the Web down with it. The reason: online advertising, ubiquitous and not particularly lucrative, is in a death spiral.

In my latest for the Nieman Journalism Lab, I take a look at Wolff’s analysis, and suggest some ways that news organizations can avoid the meltdown.

And thank you to Harvey Silverglate for pointing me to Wolff’s provocative essay.

First Amendment rights and wrongs

In an effort to respect the First Amendment‘s guarantee of freedom of religion, the Upton selectmen have given short shrift to another provision of the First Amendment: “the right of the people peaceably to assemble.”

According to Jessica Heslam of the Boston Herald, the selectmen recently voted to reject a request by local Catholics to hold a “rosary rally” on the town common, citing the separation of church and state.

But as noted civil-liberties lawyer and Friend of Media Nation Harvey Silverglate tells Heslam, there is no constitutional problem with allowing a prayer rally on public property as long as other groups are accorded the same right of access. Another civil-liberties lawyer, Chester Darling, goes further, saying, “Those selectmen belong in federal court.”

Prediction: The selectmen are going to change their minds.

Update, Oct. 28: Well, that was fast.

Four smart people, two debates

In today’s Boston Globe, civil-liberties lawyer Harvey Silverglate and Globe columnist Scot Lehigh take on the issue of former Massachusetts Senate president Bill Bulger’s conduct with regard to his brother Whitey Bulger, the notorious mobster who’s been charged in connection with the killings of 19 people.

Silverglate argues that Bill Bulger, also a former president of UMass, was under no obligation to help authorities capture his brother, and that the testimonial privilege granted to spouses should be extended to other family relationships as well. Lehigh counters, “Faced with a moral dilemma, William repeatedly made the wrong choice, putting loyalty to his felonious brother over responsibility to his neighborhood, his constituents, or the larger public community whose university he led.” (Note: Silverglate and I collaborate occasionally, and the latest example will be online later today.)

On an entirely different matter, Slate media columnist Jack Shafer assesses Patch, AOL’s network of hyperlocal sites, and finds them lacking. “Besides being wildly expensive to create, hyperlocal news doesn’t seem to appeal to a broad audience,” Shafer writes.

That prompts a response from Howard Owens, publisher of The Batavian, an independent hyperlocal site in western New York. (Owens posts two comments; read the second one first.) Here’s an excerpt:

As my friend and fellow indie publisher notes, it’s only expensive if you have a big corporate structure to support and shareholder demands to meet. There are a handful of successful local online ventures that produce a ton of highly engaging, sought after, popular, memorable local news that do it at a fraction of the cost of the corporate entities.

I posted a brief comment as well, contending that Shafer’s complaint seems to be more about his lack of interest in community news than about anything intrinsic to Patch.

Instant update: Paul Bass, editor and founder of the New Haven Independent, just weighed in. And if you scroll way down, you’ll see a brief comment from another Media Nation favorite, Debbie Galant, co-founder and co-editor of Baristanet in Montclair, N.J.

The trouble with federal plea bargains

My friend and occasional collaborator Harvey Silverglate has a terrific commentary in the Boston Globe on the plea deal reached by federal prosecutors with Joseph Lally in the corruption case against former Massachusetts House Speaker Sal DiMasi.

Lally, a former associate of DiMasi’s, received quite a goody bag in return for his plea: a two- to three-year prison sentence, compared to the nine he might have gotten if he’d gone to trial and been found guilty, as well as the right to keep his home and $30,000 in savings.

“But leniency comes at a price,” Silverglate observes. “Lally has agreed to provide testimony that will help prosecutors. The dog gets the bone only if it performs the trick.”

Here’s what I wrote in the Guardian about Silverglate’s book, “Three Felonies a Day,” which painstakingly documents numerous examples of overreach and abuse by federal prosecutors.

As the case against DiMasi continues to unfold, I’ll be watching for objective, documentary evidence regarding his guilt or innocence.

Photo (cc) by Amy and republished here under a Creative Commons license. Some rights reserved.

Presenting the 13th annual Phoenix Muzzle Awards

Just in time for your Fourth of July celebrations, we present the 13th annual Muzzle Awards, published in the Phoenix newspapers of Boston, Portland and Providence.

Starting in 1998, I’ve been rounding up enemies of free speech and personal liberties in New England, based on news reports over the previous year. For the past several years my friend and occasional collaborator Harvey Silverglate has been writing a sidebar about free speech and the lack thereof on campus.

Yes, Sgt. James Crowley of the Cambridge Police Department makes the list for his failure to understand that you shouldn’t arrest someone who’s done nothing wrong other than mouth off to you in his own home. So does former Newton mayor David Cohen, who should not seek a second career as a newspaper editor. So does the MBTA, a hardy perennial.

But my personal favorite is the Portland Press Herald, whose editorial page came out in support of a proposal by the Falmouth Town Council to clamp down on the right of residents to speak out at council meetings. When the council itself unanimously voted against the proposal several weeks later, citing free-speech concerns, the newspaper found itself in the bizarre position of showing less regard for the First Amendment than elected officials.

On Friday at 9 p.m., I’ll join Dan Rea of WBZ Radio (AM 1030) to talk about the Muzzles and anything else that might come up.

Harvey Silverglate on the Goldman case

Harvey Silverglate checks in on the Goldman Sachs case:

I think you have it just right. The ideologues, especially some New York Times reporters and liberal columnists, would like to deem Goldman’s conduct “fraud” of either the civil and/or criminal variety. From time to time, a sane and informed voice peeks through the miasma and realizes what is really going on — the SEC is trying to salvage is reputation by blaming the economic melt-down on fraudsters, rather than on the incompetence of Congress, the SEC, the Treasury Department, the Fed (why did Alan Greenspan keep interest rates so low for so long? one might usefully ask) and other regulators or would-be regulators.

While there was doubtless some fraud (for example, in the writing or sub-prime mortgages to home purchasers without adequate income or even jobs), a large measure of the blame for the meltdown goes to our government, that allowed the casino to proceed and that even provided low-interest-rate money to help finance it. Those of us who took notice, as the price of houses on our respective blocks continued to escalate to the point where we never could have bought our homes had we not done so years earlier (and way beyond what we knew the houses to be worth), realized something was amiss. But the big boys on Wall Street, blinded by the huge paydays and bonuses, just kept betting more and more.

The creation of synthetic vehicles, the only purpose of which appears to have been to magnify the amount of the bet without requiring a huge amount of capital to make the bet, made the situation infinitely worse, for the vehicles were so non-transparent that they achieved higher ratings from the rating agencies (or the underlying securities did) than they intrinsically deserved.  And so the combination of incredible leverage, plus non-transparency of the underlying securities, was a formula for disaster. This is the great failure of government regulators (as well as the independent rating agencies, by the way, such as Standard & Poor, Moody’s, and so forth).

What bothers me is that the SEC is being allowed to get away with absolving its own grotesque errors and incompetence by shouting “fraud.” You can fool some of the people all of the time, and all of the people some of the time, but….there comes a time when the game is up. To prevent this from happening again, sane government regulation of these markets is required, period.

Watch Silverglate talk about Goldman its similarities to the case of Michael Milken, whom Silverglate represented.

Was Goldman’s sleazy behavior really illegal?

Goldman Sachs founder Marcus Goldman

Keep an eye on the Securities and Exchange Commission’s case against Goldman Sachs. It’s hard to imagine a less sympathetic defendant than Goldman. That may be the problem, because evidence is already emerging to suggest regulators are concocting violations in order to punish sleazy but legal behavior.

In today’s New York Times, Binyamin Appelbaum offers a useful analysis of the SEC’s civil suit against Goldman, which stands accused of defrauding investors. The story quotes experts who point out that those investors were fully informed about what they were buying. The only thing investors didn’t know was that a hedge-fund manager named John Paulson helped pick what went into the investment vehicles and then bet they would lose money, to the great benefit, as it turned out, of Goldman’s shareholders. [Note: The previous sentence has been corrected since this item was first posted.]

Elsewhere in the Times, Andrew Ross Sorkin asks, “Why was Goldman, or any regulated bank, allowed to create and sell a product like the synthetic collateralized debt obligation at the center of this case?” The key word in that sentence may be “allowed.”

The Goldman case seems similar to one investigated recently by ProPublica and the NPR program “This American Life” involving Magnetar, a hedge fund that created collateralized debt obligations (CDOs) that it then bet against. Magnetar has been accused of deliberately making those CDOs as risky as possible and then shorting them, running up many tens of millions in profits when they failed. (Magnetar denied the accusation.)

According to the report, Magnetar’s dealings may have single-handedly extended the housing bubble for at least a year, making the subsequent crash much deeper than it otherwise would have been. Yet not only has there been no hint that there was anything illegal going on, but Magnetar itself is still in business.

(And by the way, if you haven’t heard the report, you should download the podcast. It is a rare model of clarity about an exceedingly murky subject. You will come away, as I did, actually knowing something about what CDOs are and why they were so harmful to the economy.)

Although the charges Goldman faces are civil rather than criminal, the story calls to mind my friend and occasional collaborator Harvey Silverglate’s book “Three Felonies a Day,” which details the expansive reach of federal prosecutors who use vague laws (“conspiracy” is a favorite) in order to punish people and corporations they have targeted.

The news media ought to follow Appelbaum’s lead and be on alert against getting spun by tales of wrongdoing at Goldman. The real outrage may prove to be not what’s illegal but what’s legal. Perhaps a better story is whether the massive financial-regulation bill now being considered by Congress would outlaw the sort of behavior that made Goldman and Magnetar clients even richer than they already were — while leaving the economy in ruins.

Photo via Wikimedia Commons.

Supreme Court to take up “honest services” law

The New York Times reports that the U.S. Supreme Court will take up the constitutionality of the “honest services” law, a vague federal statute that creates all kinds of opportunities for prosecutorial mischief.

Among other things, it is the root of one of the principal accusations against former Massachusetts House speaker Sal DiMasi, who faces federal charges stemming from favors he received from well-connected friends.

Abuse of the honest-services law is a major theme of friend of Media Nation Harvey Silverglate‘s book “Three Felonies a Day,” in which Silverglate argues that such laws are used to transform less-than-admirable conduct into federal crimes.

Or, as Supreme Court Justice Antonin Scalia puts it in the Times article, the law “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

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