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

Tag: Justin Silverman

Public notices are a crucial source of revenue — and of government accountability

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On September 5, 2023

In Local News

Mathewson Farm in Johnston, R.I. Photo (cc) by John Phelan.

When we think about revenue sources for local news, we tend to focus on the obvious — ads, subscriptions, events and, for nonprofits, voluntary memberships and grants. What we often overlook are public notices, also known as legal ads, taken out by government entities to inform the public that a job is being put out to bid or a meeting is being held. Mandatory public notices also include foreclosures, the disposition of public property and other business.

Public notices represent a significant source of revenue for community news organizations — and they can be weaponized. The Boston Globe recently reported on one such example in Rhode Island. Amanda Milkovits wrote that the city of Johnston has removed public notices from the weekly Johnston Sun Rise and moved them instead to the daily Providence Journal, even though the Journal charges much higher fees and is read by few people in Johnston.

The mayor, Joseph Polisena Jr., told Milkovits that he wanted public notices to reach a broader audience, especially to let construction companies know about bids. But the city has also been at odds with the Sun Rise and its editor/reporter, Rory Schuler. Publisher John Howell was quoted as saying that Polisena once told him, “I’m not going to support somebody who is working against me,” and that the mayor said he wouldn’t advertise as long as Schuler was with the paper. (Polisena denied the charges.)

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The loss of city public notices is costing the Sun Rise some $12,000 a year. Justin Silverman, executive director of the New England First Amendment Coalition, told the Globe that the city might be violating the First Amendment if  it could be shown that Polisena’s actions were retaliation for negative coverage.

What’s happening in Rhode Island is hardly unusual. In Florida, Gov. Ron DeSantis pushed a bill through the legislature that allows local governments simply to post public notices on their own websites — a cost-saving measure that also has the effect of making legal ads less visible. DeSantis’ disdain for the news media is well-known.

Colorado College journalism professor Corey Hutchins often tracks fights over public notices in his newsletter, Inside the News in Colorado. Recently he reported on a move by city officials in Aspen to designate the Aspen Daily News, which is locally owned, as the city’s “newspaper of record” over The Aspen Times, a daily owned by the Ogden chain, based in Wheeling, West Virginia. That peculiarity of Colorado law carries with it some major implications. Hutchins writes:

Newspapers that earn a city’s “of record” stamp means they are the ones a city pays to place legal notices and advertising. State law requires governments to publish certain things in local newspapers in order to keep residents abreast of public business. Being a city’s paper of record also can give a newspaper a sense of gravitas in a community.

In other words, more money for the Daily News, less for the Times, which became embroiled earlier this year in a dispute with county officials who were unhappy with the Times’ coverage of a billionaire’s development plans. (Hutchins does not claim there is a link between the county and city actions.)

According to Susan Chandler, writing for the Local News Initiative, such battles are under way across the country, with increasing pressure to move public notices from news outlets to government websites. Richard Karpel, executive director of the Public Notice Resource Center, told Chandler that these initiatives are part of Republican attacks on journalism, saying:

I don’t think the concept of legal notices is controversial. There needs to be a nonpartisan way to officially announce what the government is doing. What’s controversial is how it happens. We’ve seen it become more of a partisan issue in the last five or 10 years. In some states, there are Republicans who are in battle with the media as part of their political strategy. To that extent, it has become partisan.

In Massachusetts, change may be afoot as well. Currently, state law requires that public notices be placed in print newspapers, which has become increasingly difficult as the Gannett chain has closed and merged many of its weekly papers. A number of communities are being well served by nonprofit startups, but those tend to be digital-only. State legislators are considering ways to amend the law to allow public notices to be placed in web publications, especially in communities where there is no viable print paper.

I’ve consulted with state Rep. Ken Gordon, whose district includes Bedford, the home of a vibrant digital publication, The Bedford Citizen, but no print newspaper since Gannett closed the Bedford Minuteman about a year and a half ago. The town now publishes its public notices in The Sun of Lowell, which has virtually no presence in Bedford. Also of note: On the “What Works” podcast, Ellen Clegg and I interviewed Ed Miller, editor of the startup Provincetown Independent, a print and digital publication. Miller argues that the print requirement for public notices is essential, at least in places that still have a print newspaper.

Public notices aren’t sexy. It’s much more satisfying to talk about a local news outlet that has built a successful events business or has found a way to boost digital subscriptions. But they are essential. Not only do they provide as much as 20% to 25% of a small local newspaper’s revenues, but they an important part of accountability. Public notices on a government website can be hidden away or even changed. Since Colonial times, public notices have helped local journalism thrive and have kept citizens informed. The laws governing public notices need to be updated — but not overturned.

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Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

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On January 26, 2022

In First Amendment, Media

Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Previously published at GBH News.

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.

Mike Donoghue leaves First Amendment group’s board after dispute over church work

By

On July 28, 2021

In Media

Mike Donoghue

Longtime Vermont journalist Mike Donoghue has resigned under pressure as vice president of the New England First Amendment Coalition’s board, according to Lola Duffert of the nonprofit news organization VTDigger. The issue was his ongoing involvement in helping the Roman Catholic Diocese of Burlington deal with issues of sexual abuse by priests.

Donoghue, who retired several years ago after a decades-long career at the Burlington Free Press, is a member of a lay committee appointed by the Catholic Church “to investigate the church’s personnel files and release the names of priests credibly accused of sexual abuse,” Duffert wrote.

Justin Silverman, the executive director of the New England First Amendment Coalition (NEFAC), told VTDigger that NEFAC was under the impression that Donoghue’s service on the church committee would wrap up in 2019. After it became clear that Donoghue had continued to work on church business, the NEFAC board concluded that Donoghue had to go.

Donoghue told VTDigger in a written statement that NEFAC misunderstood the committee’s purpose, saying it “was never given the job of determining what church records would be disclosed to the public.”

I’ve got all kinds of entangling alliances here. Donoghue is a friendly acquaintance who I interviewed for my book “The Return of the Moguls.” I’m also friendly with Silverman and NEFAC president Karen Bordeleau, a former editor of the Providence Journal, who — believe it or not — shared the same Northeastern co-op job with me at The Call of Woonsocket, Rhode Island, in the 1970s. I occasionally speak at NEFAC events.

In my experience, these are all smart, ethical journalists who are trying to do the right thing. Unfortuately, the difference in their perspectives proved to be too much to overcome.

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Let the sun shine in: It’s time to end the legislative exemption to the state’s public records law

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On July 16, 2020

In First Amendment

Photo via Good Free Photos.

Previously published at WGBHNews.org.

It’s long past time to close a gaping loophole in the Massachusetts public records law: an exemption that allows the Legislature to conduct much of its business in secret. State agencies as well as cities and towns are required to turn over all manner of documents when members of the press and the public ask them to do so. Our elected lawmakers, though, operate under the cover of darkness.

With legislative business wrapping up during the next few weeks, it’s too late to expect anything to happen this year. But Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said he expects bills aimed at rolling back at least part of the exemption to be filed next January. Unfortunately, he also expects those bills to die the same quick death that similar proposals have in previous years.

“The Legislature has no interest in changing the status quo,” Ambrogi said in an email. Justin Silverman, executive director of the New England First Amendment Coalition, added he was “fairly certain there is no appetite” on Beacon Hill for any serious effort at reform.

Spokespersons for the Legislature’s Democratic leaders, House Speaker Robert DeLeo and Senate President Karen Spilka, declined to comment.

What prompted this column was a tweet. Two weeks ago, WGBH News published the annual New England Muzzle Awards, which spotlight outrages against the First Amendment from across the region. Anthony Amore, a security expert who was the 2018 Republican candidate for secretary of state, posted on Twitter: “Somehow the Massachusetts Legislature and Robert DeLeo escaped notice despite the most glaring muzzle of them all, exempting themselves from public records requests.”

https://twitter.com/anthonymamore/status/1278765068096876545?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1278765068096876545%7Ctwgr%5E&ref_url=https%3A%2F%2Fwww.wgbh.org%2Fnews%2Fcommentary%2F2020%2F07%2F16%2Flet-the-sun-shine-in-its-time-to-end-the-legislative-exemption-to-the-states-public-records-law

 

Sadly, the exemption Amore was complaining about is hardly a shocker given the sorry state of open government in Massachusetts. According to a 2018 survey by the nonprofit investigative news project MuckRock, Massachusetts is just one of four states that do not subject their legislatures to public records laws. The others: Iowa, Minnesota and Oklahoma.

“In our state’s constitution, it says that the Legislature should be ‘at all times accountable to’ the people,” Mary Connaughton of the Pioneer Institute told MuckRock. “How can they be accountable if they are hiding behind closed doors or shielding their records from the people?”

MuckRock also pointed out that the four outliers are merely following the lead of Congress, which is exempt from the federal Freedom of Information Act. But that’s hardly an excuse. Let’s not forget that, in 2015, the Center for Public Integrity awarded Massachusetts an “F” for its miserable record of failing to provide public access to information.

The Legislature and Gov. Charlie Baker did approve an upgrade to the public records law in 2016. But though some progress was made in terms of fees and enforcement provisions, the loopholes remain. Indeed, not only is the Legislature exempt, but so is the judiciary. And a string of governors, including Baker, have claimed that they and their immediate staff also need not comply.

As Boston Globe investigative reporter Todd Wallack noted on Twitter earlier this week: “Massachusetts remains the only state where the courts, Legislature, and governor’s office all claim to be completely exempt from public records laws.”

 

Ambrogi said that, during negotiations over the 2016 bill, it was made clear to reform advocates that their efforts would be derailed if they targeted the legislative and gubernatorial exemptions. The bill did create a special legislators-only commission to study further changes — but that effort, according to Ambrogi, has barely gotten off the ground.

In testimony before the commission nearly two years ago, Ambrogi said, a coalition of advocates called for removing the exemption for the governor and for modifying the exemptions for the Legislature and the courts. He emphasized that the advocates have not asked that the legislative exemption be repealed in its entirety. Rather, he said, “we proposed subjecting certain legislative records to the public records law, such as financial reports, bills and resolutions, journals, certain internal memoranda, internal manuals and policies, meeting minutes, and more.”

In a recent point-counterpoint feature in The Boston Globe, Lawrence Friedman, a professor at the New England School of Law, defended the legislative exemption. “It is not difficult to imagine state representatives and senators censoring themselves out of concern that their words might be taken out of context,” Friedman wrote. “Perspectives about proposed laws and their implications could go unshared and, therefore, unconsidered.”

Yet 46 state legislatures somehow manage to conduct business without such secrecy provisions. As Friedman’s sparring partner, Justin Silverman, argued, “These types of records are used by community watchdogs, journalists, and concerned citizens throughout the country to keep their legislators accountable.” Silverman added that with the COVID-19 pandemic reducing access to government officials, being able to obtain records is more important than ever.

If state agencies, city councils, school committees and select boards can comply with the law, then so, too, can our legislators — and our governor and our court system as well. The law already contains a number of common-sense exceptions for such matters as protecting the secrecy of contract negotiations and, when warranted, the privacy of government employees.

There are a number of clichés you could invoke here — sunshine is the best disinfectant, the government works for us, the public’s business should be conducted in public, and the like. The bottom line, though, is that democratic self-government is impossible if our elected officials are shielded from having to tell us what they are saying and doing on our behalf.

The moment has come to bring this outrage to an end.

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Guest commentary: Reform public-records law now

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On August 5, 2015

In First Amendment

The following statement was released Monday by the Massachusetts Freedom of Information Alliance.

The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.

Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.

MassFOIA commended the governor’s action but simultaneously called for legislative reform.

“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”

“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”

Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.

“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”

“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.

The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.

In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.

The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.

Specifically, the legislation would:

  • Promote access to records in electronic form.
  • Direct agencies to assign a “records access officer” to streamline responses to public records requests.
  • Lower costs for requesters and limit charges for redacting documents to withhold information.
  • Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
  • Extend the time for compliance from 10 to 15 days.
  • Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.

 

Cities and towns seek to derail public-records reform

By

On July 18, 2015

In First Amendment, Media

A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.

On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.

Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.

The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

Hi Folks,

It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.

As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead.  In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.

So, please:

1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]

2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.

3) Keep your eyes open for updated talking points over the weekend.

Thanks for your support of this critical issue!

Best,

Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition

Muzzling the press, from Tsarnaev to Delauter

By

On January 7, 2015

In First Amendment, Free speech, Media

Previously published at WGBHNews.org.

The Frederick News-Post won the Internet Tuesday with a hilariously defiant editorial.

Faced with a threat by a city council member named Kirby Delauter to sue if his name was published without his permission, the Maryland newspaper responded with a piece headlined “Kirby Delauter, Kirby Delauter, Kirby Delauter” that repeated his name nearly 50 times and included his photo. And if that didn’t make the point sufficiently, the first letter of each paragraph spelled out “K-I-R-B-Y-D-E-L-A-U-T-E-R.”

Delauter’s ludicrous assault on the First Amendment was easily batted away. But not all matters involving freedom of speech and of the press are as amusing or as trivial. You need look no further than the Moakley Federal Courthouse in Boston, where the trial of accused Boston Marathon bomber Dzhokhar Tsarnaev is about to begin without the benefit of television cameras inside the courtroom.

Tsarnaev may be sentenced to die on our behalf — yet we are being denied the right to watch the justice system at work, a crucial check on the awesome power of government. Last year a WGBH News Muzzle Award was bestowed upon U.S. Supreme Court Chief Justice John Roberts for his opposition to cameras in federal courtrooms. Unfortunately, the situation seems unlikely to change anytime soon.

At least the ban on courtroom cameras does not explicitly violate the First Amendment. The same cannot be said of Maine District Court Judge Jeffrey Moskowitz, who on Monday ruled that the news media were prohibited from reporting anything said in court by the defendant in a domestic-violence case, a criminal defense lawyer named Anthony Sineni. Reporting on witness testimony was prohibited as well.

The Portland Press Herald published this article in defiance of the gag order, and reporter Scott Dolan writes that Moskowitz has called a hearing for later today — possibly to express his displeasure over the Press Herald’s actions, or possibly to acknowledge that he got it wrong.

The Supreme Court has ruled that nearly all gag orders such as Moskowitz’s are unconstitutional. “There is a 100 percent chance this order is unlawful,” said Press Herald lawyer Sigmund Schutz, who was quoted in a blog post by Justin Silverman, executive director of the New England First Amendment Coalition. “There is no question that the U.S. Supreme Court and other courts have been very clear, what occurs or is said in the court is a matter of public record.”

A different sort of gag order is preventing us from learning everything we might know about the death of Michael Brown, the black unarmed teenager who was fatally shot by Darren Wilson, a white police officer, in Ferguson, Missouri, earlier this year. Whether Wilson’s actions were justified or not, the incident helped expose the racial divide in Ferguson and sparked protests nationwide.

Now it turns out that a member of the grand jury that chose not to indict Wilson wants to speak, but is prohibited from doing so by a Missouri law that requires grand jurors to remain silent. The grand juror has filed suit against St. Louis County Prosecutor Robert McCulloch to be allowed to discuss the case.

Though it’s not clear what the grand juror has to say, a report by Chris McDaniel of St. Louis Public Radio offers some hints. Quoting from the lawsuit, McDaniel writes: “In [the grand juror]’s view, the current information available about the grand jurors’ views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges.” (McDaniel notes that grand jury decisions need not be unanimous.)

Though it is not unusual for grand jury members to be prohibited from speaking, the ACLU, which is assisting with the suit, says that in this particular case “any interests furthered by maintaining grand jury secrecy are outweighed by the interests secured by the First Amendment.” The Boston Globe today editorialized in favor of letting the grand juror speak.

What all of these cases have in common is the belief by some government officials that the press and the public should be treated like mushrooms: watered and in the dark. These matters are not mere threats to abstract constitutional principles. they are assaults on the public’s right to know.

Or as the Frederick News-Post so eloquently put it: Kirby Delauter! Kirby Delauter! Kirby Delauter!

 

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