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In Marblehead and Waltham, teachers and officials seek to stifle public scrutiny

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On November 8, 2023

In First Amendment

In Marblehead, a number of teachers and other school staff members recently showed up at a school committee meeting to complain about public records requests filed by a nonprofit news organization that covers the town. In Waltham, the city solicitor issued what amounted to a pre-election gag order, advising city officials who were running for re-election that if they participated in candidates forums they should not address pending municipal business. These two attempts to shut down discussion of important community issues have earned the perps our latest New England Muzzle Awards (see explanation here).

First, let’s take a look at what’s going on in Marblehead. According to Ryan Vermette of the Marblehead Weekly News, the co-presidents of the teachers union, the Marblehead Education Association, said at a school committee meeting that public records requests submitted by Marblehead Current reporter Leigh Blander were costing the town money and creating a stressful situation for their members. Vermette’s article begins:

The library at Marblehead High School was standing room only at the start of the School Committee’s meeting last Thursday night as dozens of district staff stood with committee members against what they alleged was an excessive amount of Freedom of Information (FOIA) requests from a local newspaper.

“Not only does this waste significant time and resources for the district, but it causes significant stress for our educators, who become the subject of these investigations, and their reputations come under attack,” Vermette quoted co-president Jonathan Heller as saying. “While the number of incidents is relatively small to date, the threat they represent is apparent.” The other co-president, Sally Shevory, was not quoted in the story.

Now. for some background, because this is a little complicated. The for-profit Marblehead Weekly News, published by The Daily Item of neighboring Lynn, is one of three independent news outlets covering the town. The Marblehead Current, where Blander works, is a nonprofit. The third, Marblehead Beacon, is a for-profit; oddly enough, Jenn Schaeffner, a founder, editor and reporter for the Beacon is also a member of the school committee. Beacon articles about the school system are appended with this: “She [Schaeffner] is recusing herself from Marblehead Beacon’s coverage of the School Committee and anything pertaining to Marblehead Public Schools.” As best as I could tell, the Beacon has made no mention of the public records issue.

Marblehead has been beset by several controversial issues involving the school system recently, including a heavily scrutinized statement by the superintendent about the war between Israel and Hamas; a bullying investigation involving a former high school soccer coach; and possible disciplinary issues involving a former superintendent. If you’d like, you can read all the details in a Current editorial responding to the public records matter. What’s relevant is that the Current is being called out by union leaders and school officials for trying to hold them to account through their journalism. As Blander said in a statement to the Weekly News: “In pursuit of our mission to foster democratic participation by informing our readers about important issues, including those that impact students and their families, the Current seeks to make responsible use of the public records laws.”

What’s more, there is no evidence that the Current has abused the public records law by filing an inordinate number of requests. According to the editorial, “Since our launch in June 2022, we have filed 15 public records requests, 14 of which have been directed to the School Department.” Eleven of those were related to the departure of the previous superintendent. To be fair, school officials determined that a recent request for records about complaints against teachers would have required poring over nearly 477,000 emails, and that the Current would be assessed $50,000. But as the editorial put it: “As should have been obvious, the Current was not seeking to commission such a voluminous and intrusive search. We agree that would not be the best use of school employees’ time (or our money). Moving forward, if we inadvertently submit overly broad records requests to record keepers, we hope our partners in public service would simply call us and ask, ‘What are you really looking for? Can we find a way to respond without overburdening our staff?'” The editorial concluded:

Our school officials have to realize, though, that if what they are asking is essentially “stop asking so many questions,” we view that prescription as a non-starter. While we will take better care to make our requests more targeted and less burdensome, we will continue to use the public records law to seek answers we believe the public deserves.

The public records law exists so that members of the public — and the press, acting as representatives of the public — can hold government accountable. This particular Muzzle Award goes not to any particular individual but, rather, to union officials and the school committee as a whole for promoting an atmosphere suggesting that they know best, and that the prying eyes of the press are not welcome.

***

In Waltham, meanwhile, City Solicitor John Cervone has earned a Muzzle for issuing a ruling calling it “potentially problematic” if elected members of the city council who were participating in candidates forums addressed issues that were currently under consideration. This is an absurd restriction, since a challenger would be free to discuss such issues freely while the incumbent would be forced to sit there and say nothing except “upon the advice of counsel blah blah blah.” As a Boston Globe editorial put it:

The opinion appears to be based on vague — and somewhat shaky — legal grounds, and state officials ought to swat it down before the idea spreads. Some candidates in Waltham have understood it as a gag order in the heat of election season, a curb on political candidates’ speech at multicandidate forums that makes it harder for voters to make educated choices.

Justin Silverman, a lawyer who’s the executive director of the New England First Amendment Association, was quoted as saying that Cervone’s opinion appeared to be based on a misunderstanding of the state’s open meeting law. “If there isn’t a quorum present at public events, then it’s not a violation under the open meeting law,” Silverman said. No doubt — and yet it’s more than theoretically possible that a quorum of council members could be present at a candidates forum if they were all running for re-election.

A mayoral candidate, City Councilor Jonathan Paz, said Cervone’s opinion created a “chilling effect,” adding, “We as candidates are supposed to be candid, we’re supposed to be transparent about our values and our positions on certain matters.” And wouldn’t you know it: Paz lost his challenge to incumbent Mayor Jeannette McCarthy by a wide margin. No doubt it’s a stretch to say that the gag order hurt Paz’s campaign — but surely it didn’t help.

The Globe editorial notes that a similar issue arose in Newton four years ago. It’s time to clarify the law so that muncipal lawyers in other communities don’t travel down a similar censorious path.

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A Muzzle Award goes to an R.I. city councilor who threw a critic out of the chambers

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On August 7, 2023

In New England Muzzles

The Providence Journal’s Antonia Noori Farzan reported last month that a land transfer to Donna Travis, a member of the city council in Warwick, Rhode Island, had come under scrutiny, with the new leaders of a group that gave Travis the land raising questions about possible improprieties. Travis denied any wrongdoing.

It wasn’t the first time that Travis’ behavior had come under scrutiny. Back in 2017, she admitted she’d violated the state’s ethics code and paid a $1,200 fine. According to the Journal’s Carol Kozma, Travis’ case stemmed from her mixing her roles as a city official and as an executive at local nonprofit organizations. (I was able to access Farzan’s story through my USA Today subscription, but the process is convoluted and I don’t have a working link.)

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What brought this to my attention is what happened next. At a July 17 city council meeting, a Warwick resident named Rob Cote — identified by Rob Borkowski of the Warwick Post as a “frequent city critic” — was escorted out of the council chambers by a uniformed police officer after he had the temerity to wave a copy of the Journal at the council members and say, “First, I’d like to congratulate Councilwoman Donna Travis. Another front page of The Providence Journal.”

According to the Post and to a video of the proceedings rebroadcast on WPRI-TV (Channel 12), Travis immediately interjected that Cote would be thrown out if he failed to restrict his comments to matters involving city government.

Cote: “This is about city government.”

Travis: “Stick to a topic about city government or else you’ll be escorted out.”

Cote: “This is about city government. It’s actually mentioned about the Warwick City Council.”

Travis: “Did you hear what I just said?”

After telling Travis that the ACLU would hear about her attempts to squelch him, Cote was led out of the building. And sure enough, the ACLU of Rhode Island has gotten involved, writing a letter in conjunction with the New England First Amendment Coalition in which they “call upon the Council to reassure the public that this type of response will not be repeated and that residents will be free to speak at future meetings on matters involving city government without fear of being silenced.”

For her censorious efforts to shut down public discussion of an issue involving city government, Donna Travis has earned a New England Muzzle Award.

Now, let me tease out a few of the nuances here. As noted in the ACLU-NEFAC letter, signed by Steven Brown, executive editor of the ACLU of Rhode Island, and Justin Silverman, executive director of NEFAC, the city of Warwick imposes certain restrictions on members of the public who wish to speak at governmental meetings. One is that their comments pertain to issues “directly affecting city government.” But as the letter notes, Cote was shut down barely before he could get a word out, and, in any case, the property dispute involving Travis was “clearly a topic of public concern.”

In addition, the letter notes that Travis told the Warwick Beacon “it was the unwritten practice of the City Council not to allow ‘personal attacks’ during the public comment period.” Brown and Silverman respond that, “leaving aside the impropriety of relying on an ‘unwritten’ policy to censor the speech of a member of the public, any such policy itself is just as problematic from a First Amendment standpoint. In fact, courts have often struck down such restrictions as a violation of the public’s free speech rights.”

The other nuance I want to bring up is that the lack civility at local public meetings has become a real problem, making it difficult for elected officials to conduct business and driving some of them out of government. We’ve all seen televised school committee meetings at which out-of-control members of the public start screaming about critical race theory, transgender issues, vaccines or whatever. It can be difficult to know where to draw the line. Earlier this year, the Massachusetts Supreme Judicial Court ruled that local officials had gone too far in silencing a woman who twice called a select board chair “a Hitler.”

In the Warwick case, though, Cote comes across as polite, if sarcastic, and ready to talk about a matter of considerable public concern.

Travis might also consider the Streisand effect. Few people would know about the property dispute if she hadn’t tried to silence Cote. All around, it was a pretty sad performance by someone who was elected to act in the public’s best interest.

Correction: This post originally said that Travis was “led out of the building.” It was, of course, Cote.

The Mystic Valley Charter School, winner of a 2017 Muzzle, is back to its old tricks

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On August 1, 2023

In New England Muzzles

Attorney General Andrea Campbell. Photo (cc) 2022 by Dan Kennedy.

The Mystic Valley Regional Charter School — recipient of one of the all-time most outrageous New England Muzzle Awards back in 2017 — is in trouble once again, this time for its insistence on conducting the public’s business behind closed doors. Adam Gaffin of Universal Hub reports that state Attorney General Andrea Campbell’s office has asked a judge to order that the taxpayer-funded school produce public documents it has refused to hand over despite requests at the local level as well as repeated demands by Secretary of State Bill Galvin.

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School officials claim they do not have to comply because Mystic Valley, based in Malden, doesn’t meet the definition of a “public school,” even though state law specifically describes charter schools as such. In any case, they say they won’t produce the records until a judge orders them to do so, notwithstanding the fact that the state public records law empowers the secretary of state to enforce the law.

The records, sought by Malden News Network, a local journalism outlet; Commonwealth Transparency, an advocacy group; and Malden mayoral candidate Lissette Alvarado cover a wide range of issues, including payroll, contracts, conflicts of interest, accountings of school income, copies of emails, and documents regarding Boston Globe stories about the school.

Now, to get back to that 2017 Muzzle Award from GBH News. During the 2016-’17 school year, Mystic Valley administrators began enforcing a dress-code prohibition against hair extensions, worn most often by Black female students. After parents complained about the clearly racist policy, school officials doubled down, leading to reporting by The Boston Globe and other news organizations. Yet the school refused to back down until then-Attorney General Maura Healey intervened.

That stiff-necked refusal to acknowledge its own wrongdoing obviously hasn’t changed over the years. When a judge finally orders the school to produce public documents, it will be interesting to see whether Mystic Valley complies — or if, instead, its administrators decide the judge somehow improperly claimed jurisdiction, or was wearing the wrong-colored robe or something.

If you want to read the full complaint, Adam’s posted it at the link above. The Boston Globe reports on Campbell’s lawsuit here. And Malden News Network has posted an item on its Facebook page.

Muzzle follow-up: RFK Jr. loses his appeal over Warren’s criticism of his COVID book

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On July 7, 2023

In food, New England Muzzles

Sen. Elizabeth Warren. Photo (cc) 2019 by Gage Skidmore.

A federal appeals court has sided with U.S. Sen. Elizabeth Warren in her battle with Amazon over a book that promoted falsehoods about COVID-19. Presidential candidate and noted conspiracy theorist Robert F. Kennedy Jr., who contributed to the book, sued Warren on First Amendment grounds, but Adam Gaffin of Universal Hub — who keeps an eye on the courts so that I don’t have to — reports that the U.S. Court of Appeals for the Ninth Circuit recently ruled that Warren has the same right to criticize Amazon as anyone else.

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Last July, I gave Warren a New England Muzzle Award, arguing that though she did indeed have the right to criticize Amazon, a statement she issued targeting Amazon’s algorithmic promotion of books such as “The Truth about COVID-19,” for which Kennedy wrote the introduction, suggested that she was threatening to use her position as a prominent elected official to seek regulation of Amazon’s business practices. In a press release issued in 2021, Warren criticized a “pattern and practice of misbehavior” that “suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products — an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.”

Prominent civil rights lawyer Harvey Silverglate told The Boston Globe that Kennedy and his fellow plaintiffs had a strong case, saying, “You’d think that a former Harvard law professor would know better.”

But a federal district court disagreed, and now the appeals court has disagreed as well. From the appeals court’s decision:

Elizabeth Warren, as a single Senator, has no unilateral power to penalize Amazon for promoting “The Truth About COVID-19.” This absence of authority influences how a reasonable person would read her letter. A similar letter might be inherently coercive if sent by a prosecutor with the power to bring charges against the recipient…. The letter could be viewed as more threatening if it were penned by an executive official with unilateral power that could be wielded in an unfair way if the recipient did not acquiesce…. But as one member of a legislature who is removed from the relevant levers of power, Senator Warren would more naturally be viewed as relying on her persuasive authority rather than on the coercive power of the government to take action against Amazon.

Although it was admittedly a stretch to argue that Warren’s statement amounted to a threat rather than mere criticism of Amazon’s business practices, she could have followed up by holding hearings and filing legislation that would, for instance, ban the use of algorithmic promotion of books that indulge in falsehoods. We have enough book-banning going on in the country, thanks to Ron DeSantis and his ilk, without having one of our leading progressive senators taking part. Given that Warren did not actually seek to follow up her words with actions, though, I’ll concede that the courts got it right.

How our weak public records law is enabling a cover-up of school sports harassment

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On June 20, 2023

In New England Muzzles

Photo (cc) 2016 by NAVFAC

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.

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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 alleged misconduct 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.

Healey’s choice as housing secretary ‘won’ a 2022 New England Muzzle Award

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On May 16, 2023

In First Amendment

Edward Augustus (via Dean College)

Edward Augustus, Gov. Maura Healey’s choice to serve as housing secretary, won a New England Muzzle Award from GBH News last year for his role in suppressing public records about police misconduct during his years as Worcester’s city manager.

The Telegram & Gazette, Worcester’s daily newspaper, spent years seeking those records, which were associated with 12 internal affairs investigations and complaint histories regarding 17 police officers. Superior Court Judge Janet Kenton-Walker said she believed the city had acted in bad faith, ruling that officials had “cherry picked” language in its legal documents and used it in a manner that was “out of context.” She sternly added: “Counsel may not misrepresent to the court what cases and other materials stand for.”

Judge Kenton-Walker’s outrage led her to impose an unusually harsh penalty, ordering the city to pay $101,000 in legal fees and $5,000 in punitive damages — unheard of in a state where public-records violations are as unremarkable as breakdowns on the MBTA. Yet even that proved to be insufficient to punish the city’s outrageous conduct. The T&G went back to court, arguing that the paper should be made whole for the entirety of its $217,000 in legal fees. This past February, the city and the T&G reached an out-of-court settlement for $180,000.

Augustus was gone from Worcester City Hall before last year’s Muzzles were published, having decamped for Dean College in Franklin, where he was named chancellor.

Of course, it’s possible that Augustus’ record in rebuilding Worcester qualifies him for his new position. According to The Boston Globe:

“Ed Augustus is the leader Massachusetts needs to take the helm of our new Executive Office of Housing and Livable Communities and drive an ambitious, collaborative strategy to increase housing production and lower costs across the state,” Healey said in a statement.

During his eight-plus years in Worcester City Hall, Augustus helped oversee the redevelopment of Worcester’s Canal District, including thousands of new housing units that have helped revitalize the city’s downtown.

Still, Augustus’ role in stonewalling public records not only slowed the T&G’s efforts to report on police misconduct — vital journalism in the public interest — but it also ended up costing taxpayers $185,000 in addition to whatever legal expenses the city itself might have incurred.

The press ought to start filing public records requests with the state housing office as soon as Augustus takes charge — just to see what happens.

Finally, my standard disclosure: David Nordman, who was the T&G’s editor until this past summer, is now a colleague of mine at Northeastern. We work on opposite sides of the campus, literally and figuratively: he’s the executive editor of Northeastern Global News, part of the university’s communications operation, and I’m a faculty member at the School of Journalism.

That time when Tucker Carlson sicced his mob on two freelance journalists

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On May 1, 2023

In First Amendment, Media

Carlson calling: Telephone sculpture in Bryant Pond, Maine. Photo (cc) 2019 by Zendry 423.

The Boston Globe has published a story about ex-Fox News host Tucker Carlson’s summer home in Bryant Pond, Maine, and how residents are taking his defenestration. Reading it reminded me that two years ago I gave Carlson a New England Muzzle Award for siccing his on-air mob on two freelance journalists who, he falsely claimed, were seeking to dox him by exposing the exact location of his Maine redoubt. Here’s what I wrote at the time for GBH News:

One night last July [2020], three members of a terrified family locked themselves in an upstairs room of their home in Maine as someone — apparently more than one — pounded on the door and tried to get in.

“My brother-in-law is a journalist and a news source posted his name on, uh, Tucker Carlson show and his address and things of that nature so he has, um, been getting threats all night long,” said the brother-in-law of Tristan Spinski, a freelance photographer who occasionally gets assignments from The New York Times. Spinski and his wife were there as well. The quote comes from a 911 call obtained by Erik Wemple of The Washington Post.

So what happened? Last summer, Tucker Carlson claimed, falsely, on his Fox News show that the Times was planning to dox him in an upcoming story by revealing the address of his home in Maine and running photos of it. He called out the journalists by name: “So how would Murray Carpenter and his photographer, Tristan Spinski, feel if we told you where they live? If we put pictures of their homes on the air?” And he let his adoring fans do the rest.

“The threats against the two freelancers came via email, voice mail, etc.,” wrote Wemple — even though the Times had reportedly already assured Carlson on two separate occasions that the story would not include the address or photos of his home.

Carlson has a weird history regarding his privacy in Maine. Two years ago, he canceled plans to build a studio next to a public library from which he sometimes hosts his show, blaming the Sun Journal of Lewiston for revealing the location. Yet he had all but announced its coordinates on the air, referring to it as “the northernmost bureau of Fox News.” A year later, his plans were apparently back on again.

In any case, putting two freelance journalists at risk of bodily harm even though he had been told they had no intention of doxxing him had its intended effect. The story never ran. And though the Times has a well-deserved reputation for resisting intimidation, freelance journalists everywhere were put on notice not to mess with Tucker Carlson.

Muzzle follow-up: A settlement is reached in a Worcester public records case

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On April 14, 2023

In First Amendment

A final price tag has been set on the city of Worcester’s years-long campaign to withhold public records pertaining to police misconduct from the Telegram & Gazette, the city’s daily paper, and its reporter Brad Petrishen. Open government watchdog Andrew Quemere writes that the T&G and the city reached a settlement in February for $180,000 to cover most of the paper’s legal fees plus $5,000 in punitive damages.

Last summer I gave former Worcester city manager Edward Augustus a New England Muzzle Award, published by GBH News, for leading the effort to keep residents of his city in the dark about what their police department was up to. District Court Judge Janet Kenton-Walker awarded the T&G $101,000 in legal fees in addition to the punitive damages, ruling that such a harsh penalty was justified because the city had misrepresented aspects of the case in its dealings with the court.

Not harsh enough, as it turned out. The T&G’s lawyer, Jeffrey Pyle, appealed Kenton-Walker’s ruling, arguing that the paper’s legal fees of $217,000 should have been covered in their entirety given the city’s misconduct. The state Appeals Court agreed, overturning Kenton-Walker. That led to the February settlement.

“The Telegram & Gazette spent more than three years fighting for the right to have access to documents of considerable public interest,” T&G executive editor Michael McDermott was quoted as saying in Quemere’s post. “I’m proud of reporter Brad Petrishen for pursuing these records and thankful to our lawyers for successfully defending the public’s right to know.”

And, finally, my disclosure: David Nordman, who was the T&G’s editor until this past summer, is now a colleague of mine at Northeastern. We work on opposite sides of the campus, literally and figuratively: he’s the executive editor of Northeastern Global News, part of the university’s communications operation, and I’m a faculty member at the School of Journalism.

The SJC’s ruling on civility was correct, but it’s unlikely to be the last word

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On March 14, 2023

In First Amendment

The John Adams Courthouse, home to the Supreme Judicial Court. Photo (cc) 2008 by Swampyank.

The grotesque incivility of the age has caught up with local government. The state’s Supreme Judicial Court ruled last week that a bylaw in the town of Southborough that requires members of the public to act with “civility” when addressing officials was a violation of the Massachusetts Constitution as well as the First Amendment.

It’s hard to disagree. In fact, three years ago I gave a New England Muzzle Award to the president of the town council in Exeter, Rhode Island, for sponsoring a rule requiring “decorum” from people who appear at public meetings. As I wrote for GBH News, “It should be possible to exercise some control over a public meeting without an ordinance that tramples on the First Amendment.”

I haven’t changed my mind, and I think the SJC did the right thing in ruling against Southborough officials. But wow. The unanimous decision, Barron v. Kolenda, was written by Justice Scott Kafker. Adam Gaffin, who covered the case for Universal Hub, reports:

At issue was a 2018 meeting of the town Select Board when the chairman cut short the regular public-comment period after a local gadfly, upset about both a potential tax increase and a state determination that the board had earlier and repeatedly violated the state Open Meeting Law, called the chairman “a Hitler” twice (to which he replied she was “disgusting”). He cited the town’s “civility” bylaw, which requires statements to be “respectful and courteous, free of rude, personal, or slanderous remarks” and which bars shouting and “inappropriate language.”

The SJC ruled that the select board had engaged in “viewpoint discrimination” on the grounds that favorable comments about the board would not have similarly been shot down. The court said that the wording of the bylaw goes well beyond the state constitution, which says only that the right of free speech must be exercised in “an orderly and peaceful manner.”

I could go on, but Adam’s got the story well covered, including lengthy excerpts from the SJC’s ruling. Jennifer Smith has a bit more at CommonWealth Magazine about what actually went down at the select board meeting. According to Smith, the resident in question, Louise Barron, accused town officials of “spending like drunken sailors” and held a sign; on one side was written “Stop Spending,” and the other proclaimed “Stop Breaking Open Meeting Law.” Smith continues:

Board member Daniel L. Kolenda interrupted, saying she [Barron] was starting to “slander” the town officials. He announced the public comment period would close and the board would go into recess, at which point an outraged Barron said, “Look, you need to stop being a Hitler.”

Kolenda ordered the hearing ended and cameras turned off, the SJC said. He began shouting at Barron that she was “disgusting” and he would have her “escorted out” of the meeting if she did not leave. She left and later brought suit, appealing to the high court after a lower court dismissed her claims.

The select board may control public participation to some extent, the SJC notes, by adopting “time, place, and manner restrictions” concerning the length of the public comment session, time limits for each speaker, and rules against disrupting other speakers. Because such TPM restrictions, as they are called, are viewpoint-neutral, they do not raise any constitutional issues. The Southborough ordinance, though, went well beyond that. Justice Kafker’s decision ends with this:

At a public comment session in a meeting of the board, a resident of the town thus clearly has the right to accurately complain about violations of law committed by town officials and object to other town actions, including its spending practices, and to express her views vehemently, critically, and personally to the government officials involved…. When a government official responds to a resident’s exercise of those rights by accusing her of slandering the board, screaming at her, and threatening her physical removal, it should be clear to him that his conduct is unlawful.

As I said, the SJC clearly got it right. Carol Rose, executive director of the ACLU of Massachusetts, said in a statement: “This is a major victory for free speech and participatory democracy.” But when I was regularly covering city council, select board and school committee meetings back in the 1980s, it would have been unthinkable for a member of the public to refer to a public official as “Hitler” — and, yes, there were obnoxious, uninformed members of the public back then, too. But there was also a certain level of propriety that everyone adhered to. It would have been inconceivable for anyone to invoke Hitler.

We are in a different world, now. The SJC ruling harks back to an earlier age, invoking both John Adams, for whom its gathering place is named, and Samuel Adams. Barron v. Kolenda is unlikely to be the last word on how members of the public may or may not behave in governmental forums, either in Massachusetts or elsewhere.

Healey’s ambivalent stand on public records recalls her Muzzle Award-winning past

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On February 15, 2023

In First Amendment

Gov. Maura Healey. Photo (cc) 2013 by ZGreenblatt.

Andrew Quemere, a journalist who doggedly follows open-government issues in Massachusetts at his newsletter, The Mass Dump, reports that newly minted Gov. Maura Healey may prove to be not quite the champion of Beacon Hill transparency that she claimed she would be.

No one should be too surprised — she is, after all, a two-time winner of the New England Muzzle Awards, a feature I wrote for 25 years for GBH News and, before that, The Boston Phoenix that tracked outrages against free speech. I’ll get to that. But first, the latest. Quemere’s item begins:

Massachusetts Governor Maura Healey’s administration said Monday that it will not release records from past administrations. The decision means that a vast amount of vital information about state government — including former Governor Charlie Baker’s response to the COVID-19 pandemic, the repeated safety problems at the Massachusetts Bay Transportation Authority, and the sprawling overtime-fraud scandal at the State Police — will remain secret.

Some background: Baker and previous governors declared that the state’s public records law did not cover either them or their immediate staff. Indeed, the notoriously weak law also doesn’t cover the legislative branch (see this 2020 report by Northeastern journalism students) or the judiciary, meaning that the only governmental groups that have to comply are cities, towns, the state’s executive agencies and quasi-independent authorities. (And county government, to the extent that we have county government, which we pretty much don’t.)

Healey told GBH News in December that she would end the exemption for her office — but then reversed herself, explaining, essentially, that she would take it on a case-by-case basis. Moreover, the Healey administration refused to provide Quemere with records pertaining to police and law enforcement dating back to Baker’s time in office, saying that the new, more open policy she has adopted is not retroactive.

So: Healey’s new policy of openness does not cover previous administrations; and we’re not clear what the new policy really means.

As for the Muzzle Awards, the most pertinent is from 2018, when she was singled out for upholding rulings that public information should, in some cases, remain private. Healey’s secretive approach to the people’s business when she was the state attorney general was revealed by then-Boston Globe reporter Todd Wallack, now with WBUR Radio. As I wrote at the time:

Wallack’s most startling finding: Healey’s office had upheld a ruling by the Worcester district attorney that records pertaining to the 1951 murder of a state trooper should not be made public. Healey’s decision reversed a ruling by Secretary of State Bill Galvin’s office and denied a friend of the murder victim the opportunity to follow up some leads on his own. The friend has since died.

Wallack documented numerous other examples of Healey’s penchant for siding with the secret-keepers, including her decision to appeal an order that the state police provide the Globe with dates of birth for state troopers. That would have made it possible for the paper to examine the driving records of officers who had been involved in motor-vehicle accidents. Robert Ambrogi, a First Amendment lawyer and the director of the Massachusetts Newspaper Publishers Association, told Wallack: “I would expect more based on the promises she has made about open government.”

Her previous Muzzle was less germaine: I criticized her in 2015 for filing a formal defense of “a 1946 state law criminalizing political lies aimed at influencing an election.” Go ahead. You tell me what what’s a lie, what’s a mistake and what’s political hyperbole. I wrote:

As the libertarian Cato Institute was quoted as saying in an article by the State House News Service, it can be “incredibly difficult to assess the truth of a politician’s claims, especially in the chaos of an election campaign.” A number of advocacy groups and media organizations opposed Healey, including the ACLU of Massachusetts and the New England First Amendment Coalition.

We live in a time of intense political polarization, but there is an issue that unites Democrats and Republicans: the intense desire to conduct the public’s business out of public view. Let’s hope that Gov. Healey’s first steps aren’t a sign of things to come.

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