Tag: Muzzle Awards Page 1 of 9

On July 1, 2024

Retired Vermont State Police Sgt. Jay Wiggen

Among the most toxic behaviors that we often see in police officers is the tendency of some of them to overreact if they think they’re being disrespected. What they deserve, as public servants doing a difficult and dangerous job, is our cooperation. That doesn’t mean we have to like it.

Which brings us to Sgt. Jay Riggen, a Vermont state trooper. According to a recent account in The New York Times, in February 2018 Riggen pulled over a driver named Gregory Bombard — twice — for giving him the finger. Bombard denied it, but then did, in fact, flip off Riggen and cursed. Bombard was arrested and charged with two counts of disorderly conduct, charges that were later dismissed.

It got worse. The Times story, by Sara Ruberg continues:

According to the lawsuit, which was filed in 2021, the police circulated Mr. Bombard’s mug shot to local news outlets after his arrest and towed his car from where he had pulled over. Lawyers representing him said that last Christmas the state police issued another citation ordering him to be arraigned on a disorderly conduct charge in connection with the 2018 episode after the dashcam footage of his arrest was circulated and the police received public pushback.

Bombard last month received a $175,000 settlement. And Riggen, who retired at the end of May, is receiving a New England Muzzle Award.

An account by Juan Vega de Soto for the nonprofit news outlet VTDigger includes some other details. After pulling Bombard over, Riggen admitted that he was probably wrong in thinking that Bombard had flipped him the bird — not that it should have mattered. Vega de Soto writes:

In the ensuing conversation, Riggen acknowledged that he might have mistaken Bombard lighting a cigarette for the obscene hand gesture. FIRE [the Foundation for Individual Rights and Expression] made the dash cam footage of the arrest public late last year.

In his response to Bombard’s lawsuit, Riggen admitted that he told Bombard: “Once I realized that you weren’t flipping me off, you’re free to go.”

As Bombard pulled out to leave, however, he cursed and displayed his middle finger, according to the civil complaint.

In the dash cam video, Riggen can be heard saying: “He called me an asshole and said ‘Fuck you.’ Flipped the bird. I’m gonna arrest him for disorderly conduct.”

Bombard sued with the help of the Vermont ACLU and FIRE. As FIRE senior attorney Jay Diaz put it in a statement: “We wouldn’t tolerate police officers who don’t understand traffic laws or parking laws. Well, the Constitution is the highest law in the land, and it doesn’t allow cops to abuse their power to punish protected speech.”

Now, admittedly, Bombard’s response to Riggen was not exactly the smartest thing he could have done. But it was protected by the First Amendment, and Riggen should have acted accordingly instead of punishing Bombard for failing to show him the respect his mistakenly thought he was entitled to.

Plymouth official threatens reporter for recording a public, live-streamed meeting

On June 20, 2024

On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.

Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:

There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.

Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.

Let’s count up the absurdities.

The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?

Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”

But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.

When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”

Two other points of note.

First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.

Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.

Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.

Appeals court rules that school officials had a right to ban anti-trans T-shirts

On June 12, 2024

Liam Morrison. Handout photo via Nemasket Week.

Not surprisingly, a federal appeals court has ruled against a Middleborough student who sued the school system after he was banned from wearing two T-shirts with anti-transgender messages.

According to an article by Sawyer Smook-Pollitt in Nemasket Week, Chief Judge David Barron, writing for the First Circuit Court of Appeals, ruled that school officials did not act “unreasonably in concluding that the shirt would be understood … in this middle school setting … to demean the identity of transgender and gender nonconforming students.” John R. Ellement covered the story for The Boston Globe as well.

Earlier, Morrison lost in U.S. District Court. At this point, his only recourse would be an appeal to the U.S. Supreme Court. Given the high court’s lurch to the right, maybe his high-profile backers at the Massachusetts Family Institute, a religious-right organization, will give it a try.

As I’ve written previously, Liam Morrison, then a seventh-grader, was sent home from the Nichols Middle School twice in the spring of 2023 — the first time for wearing a T-shirt that read “There Are Only Two Genders” and, the second time, for amending that to “There Are (Censored) Genders.”

This was not an easy call. At root, the First Amendment exists to protect unpopular speech, and Morrison’s T-shirts were surely unpopular among his LGBTQ classmates and their allies. On balance, though, I think school officials and the courts have gotten it right.

As Judge Barron observes, the T-shirts’ message was demeaning to trans students and dismissive of their very identity. By contrast, if a student wore a pro-transgender T-shirt, that would not represent any sort of threat or insult to non-trans students. In addition, the courts have ruled repeatedly that public school students’ First Amendment rights are limited when they are on school property. The school handbook in Middleborough bans clothing that targets “groups based on race, ethnicity, gender identity, religious affiliation or any other classification.”

For all these reasons, I’ve refrained from giving a New England Muzzle Award to Middleborough school officials, even though Morrison and his family no doubt believe they’ve been muzzled.

Great Barrington teacher sues town, school district and police over classroom search

On May 17, 2024

In New England Muzzles

Photo (cc) 2022 by John Ramspott

When we handed out a New England Muzzle Award last December in connection with a needless middle school controversy over the book “Gender Queer,” we had to settle for anonymity: it wasn’t clear who had contacted the Great Barrington Police Department to complain that they’d found a copy in a classroom at the W.E.B. DuBois Middle School.

Well, now we have a candidate. According to a federal lawsuit filed by eighth-grade English teacher Arantzazú Zuzene Galdós-Shapiro, the complaints were filed by a “disgruntled homophobic Middle School janitor,” which led to a search of her classroom. The janitor is not named in the suit, but a report commissioned by school officials identified him as Adam Yorke and said he was no longer employed by the school district, according to a Feb. 24 article by Berkshire Eagle reporter Heather Bellow. We invite Yorke to contact us so that he can make arrangements to pick up his prize.

News of the lawsuit was broken earlier this week by Bellow, who’s been following this story from the beginning. The Boston Globe’s John R. Ellement picked up on it as well.

According to the lawsuit, Yorke may have instigated the incident, but others are far from blameless. The suit also names the town, the school district, Police Chief Paul Storti, Police Officer Joseph O’Brien and School Superintendent Peter Dillon. As Bellow reports, “Yorke had accused Galdós-Shapiro of letting a student sit on her lap and to keep information from parents. He also had provided police with photos of some content of the book that shows the explicit sexual images.” Bellow adds:

A criminal investigation was quickly dismissed after Storti and Dillon and the Berkshire District Attorney’s Office determined that the book was not “pornographic,” and after Yorke was revealed to have an “axe to grind” against the district. But the allegations “left her devastated and profoundly shaken, ill, distressed, and fearful, her reputation publicly destroyed,” the court document says.

Among other allegations against the school district, the teacher said Dillon “knew well and failed to follow the established process for challenging classroom content.”

In other words, Galdós-Shapiro alleges that the defendants backed off only after trampling on her rights. That happened, she charges, because she had been singled out as “a queer Mexican-American.”

“Gender Queer” is an illustrated book by Maia Kobabe that aimed at kids who are questioning their sexuality and that is among the country’s most frequently banned books.

Note: My original post in December mistakenly said that “Gender Queer” had been found in the school library rather than in a classroom. I’ve gone back and corrected that post.

How our shameful public records law is affecting the Karen Read murder trial

On April 29, 2024

Massachusetts Statehouse. Photo (cc) 2015 by Upstateherd.

The murder trial of Karen Read is, without question, one of the strangest spectacles we’ve seen in Massachusetts for a long time.

Read has been charged with driving over her boyfriend, former Boston police officer John O’Keefe, and leaving him to die in a snowbank. Read counters that she’s being framed — that, in fact, O’Keefe was beaten up, bitten by a dog and dragged outside. Adding to all of this is a murky federal investigation of the Norfolk County district attorney’s office and the involvement of Aiden Kearney, the Turtleboy blogger who has taken up Read’s cause and who’s been charged with witness intimidation and illegal wiretapping.

In one sense, though, it’s a very familiar story. Crucially important evidence is being withheld from the public because of our state’s restrictive public records laws. As Sean Cotter reports in The Boston Globe, autopsy reports are not considered public records in Massachusetts. We’re not unique in that regard. Citing information from the Reporters Committee for Freedom of the Press, Cotter writes that among the very few states where autopsy records are considered public are Alabama, Colorado, California and Florida.

“If the public cannot see the documents that judges rely on in the course of making decisions, the public cannot make decisions on whether the judge’s decisions are correct,” First Amendment lawyer Jeffrey Pyle told the Globe.

The Norfolk DA’s office turned down the Globe’s public records request, with spokesman David Traub telling the paper, “The examination and cross-examination of the medical examiner will be where you get your answers.”

Massachusetts has long had a reputation for being among the worst states with regard to open government. About a decade ago, the Center for Public Integrity gave the state a D-plus in an overall accountability score as well as an F for public access to information. The state’s public records law was strengthened in 2016, but it remains woefully inadequate.

So let’s give a New England Muzzle Award to the Massachusetts legislature for failing to take any meaningful action to ensure that the public’s business will be conducted in public. The autopsy report on Officer O’Keefe’s death should be made public — and that’s just a small part of the much larger problem that our elected officials would rather operate in the dark than let the light shine in.

Muzzle follow-up: North Brookfield will allow drag show at Pride event

On March 20, 2024

In First Amendment

North Brookfield Town Hall. Photo (cc) 2009 by John Phelan.

The Rural Justice Network and the ACLU of Massachusetts have settled a lawsuit they filed against town officials in North Brookfield after the town agreed to allow a Pride event to take place on June 29. The town was the recipient of a New England Muzzle Award in December after two members of the three-member board of selectmen said they would vote against a permit because it would include a drag show. It was the second time they voted “no,” having done so previously in advance of a 2023 Pride celebration. They were overturned back then, too.

There is an odd passage in the ACLU’s press release: “According to the settlement, the North Brookfield Planning Board has approved a permit for Small Town Pride on June 29, after the Town stripped the Select Board of the power to approve all future events in local parks in light of prior obstruction by the two Select Board members.” I’m not sure how “the Town” would take power away from the selectmen (yes, the town uses the old-fashioned gendered term) except at town meeting or possibly in a referendum. Otherwise, the selectmen are the town’s highest authority.

The Telegram & Gazette of Worcester reported earlier this week that permitting would be turned over to North Brookfield’s parks and recreation committee, although, again, there’s no explanation as to how that transfer of power came about. T&G reporter Veer Mudambi writes that the committee did not respond to a request for comment.

The ACLU’s full press release follows:

Town agrees to refrain from future interference and alter permitting process following ACLU lawsuit

The Rural Justice Network and ACLU of Massachusetts today announced a settlement in their lawsuit against the Town of North Brookfield, following an earlier announcement that a local Pride event will go forward as planned on June 29. Two members of the town Select Board had unlawfully blocked a permit for this event because it includes plans for a drag show.

According to the settlement, the North Brookfield Planning Board has approved a permit for Small Town Pride on June 29, after the Town stripped the Select Board of the power to approve all future events in local parks in light of prior obstruction by the two Select Board members. In addition, the Town agrees not to interfere with Small Town Pride in the future and will pay damages and attorneys’ fees.

“We are pleased for the assurance that this settlement affords our clients, as well as compensation for harms caused by the unlawful interference by two Select Board members,” said Ruth Bourquin, senior managing attorney at the ACLU of Massachusetts.“North Brookfield has now taken steps we hope will ensure that groups like the Rural Justice Network can exercise their right to express themselves equally and openly in public spaces. We look forward to celebrating Small Town Pride this year and for many years to come.”

In October, the Rural Justice Network requested permission to host its fourth annual Small Town Pride celebration on the North Brookfield Town Common in June 2024. During a November Board meeting, after event organizers confirmed the celebration would include a drag performance that would not be hidden from public view in a tent, the chair and then-vice chair refused to approve the Rural Justice Network’s request and explained that the decision meant that the application for the event permit “doesn’t go forward.” This prompted an ACLU lawsuit in December, alleging a pattern of discriminatory treatment, violations of free expression and assembly rights, and unlawful discrimination on the basis of gender.

“In spite of challenges we have faced in the past two years, events like Small Town Pride always make it worth the effort,” said Rob Orpilla, President of the Rural Justice Network. “We’re happy to start making concrete moves for our 2024 event now that we’ve resolved the lawsuit. This is another victory for change in our area.”

Last year, the same chair and vice chair had attempted to deny the Rural Justice Network the right to include any drag performance in its 2023 Small Town Pride celebration simply because the officials personally believe that such performance is “wrong.” The event ultimately went forward as planned after the ACLU and North Brookfield’s legal counsel became involved.

For more information about Rural Justice Network v. Town of North Brookfield, go to: https://www.aclum.org/en/cases/rural-justice-network-v-town-north-brookfield

A Muzzle to a CT police department that kept a murder probe under wraps

On March 17, 2024

In First Amendment

Call it a slow-breaking homicide.

In New Britain, Connecticut, a woman whose obituary said she had died on March 1 was revealed more than a week later to have been the victim of a possible murder. The woman, 71-year-old Lauren “Laurie” Gualano, a retired educator, died from blunt trauma to her “head, neck, torso and extremities, with neck compression,” Hearst Connecticut reporter Christine Dempsey wrote on March 11, citing the state medical examiner’s office, which said it was treating Gualano’s death as a homicide.

Dempsey also said on Twitter/X: “This is probably the first time in my career that a police department did not release any information about a homicide. Not even where it happened, or when.” According to her story:

New Britain police did not release any information about the homicide and did not return phone or emailed messages Monday, and in a written response to a call and text message Monday morning, [Rachel] Zaniewski [a spokeswoman for the mayor] said, “this situation is still being actively investigated, so unfortunately, I don’t have any additional updates on my end at this point.”

The city has a policy of directing the media to the mayor’s office, instead of the police or fire departments, for information about public safety matters.

This morning, Hearst reported that Gualano’s son, Nicholas Legienza, 39, was in custody and was under investigation for his possible involvement.

Under public records laws in most states, including Connecticut, the police are not required to release detailed information about a crime if that would impede their investigation. But sitting on a possible murder for more than a week and not confirming it even after the state medical examiner called the death a homicide is a violation of the public trust. For that, the New Britain Police Department has earned a New England Muzzle Award.

AG Campbell boosts free speech for electeds, while an anti-trans shirt goes to court

On February 14, 2024

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

A past winner of a New England Muzzle Award is in the news, while a more ambiguous case is making its way through the federal courts.

First, Massachusetts Attorney General Andrea Campbell recently issued guidance stating that local elected officials have no fear of violating the state’s open meeting law if they take part in re-election activities such as debates or candidate forums where they discuss pending municipal business. Campbell’s decision follows a ruling by our Muzzle winner, Waltham City Solicitor John Cervone, that such activities would be “potentially problematic,” raising the specter that officials running for re-election would be barred from any substantive discussion of local issues.

Campbell’s guidance was hailed in a Boston Globe editorial, which noted that a similar situation had arisen in Newton. The editorial observed that Campbell gave her blessing even to situations at which a quorum of officials are present (for instance, three members of a five-member selectboard) “as long as they address their answers to the public, not to each other.” Campbell’s guidance reads in part:

The Open Meeting Law does not restrict an individual’s right to make comments to the general public, particularly as a candidate for office. Rather, it restricts communication between or among a quorum of a public body outside of a meeting; thus, the intent of the public official is an important consideration.

The Waltham and Newton restrictions were absurd, and Campbell was right to set them aside.

Second, Liam Morrison of Middleborough, Massachusetts, who as a seventh-grade student last year was banned from wearing an anti-transgender T-shirt to school, has taken his case to the U.S. Court of Appeals for the First Circuit after losing his bid to overturn the ban in federal district court. Morrison wore a shirt that said “There Are Only Two Genders.” And when that didn’t pass muster, he returned to school with a T-shirt that said “There Are [Censored] Genders.” That earned him a trip back home as well.

According to a report by Reuters, the appeals court seemed unimpressed with Morrison’s free speech argument at a recent hearing. Here’s part of the Reuters article:

U.S. Circuit Judge Lara Montecalvo contrasted the shirt with a brochure handed out by students expressing a particular message, saying unlike those pieces of paper, a student could not throw away the shirt that Morrison was wearing.

“A T-shirt that is worn all day is worn all day,” she said. “You have to look at it, you have to read it.”

Deborah Ecker, a lawyer for the Middleborough School Committee, said the school officials’ actions were motivated by concern for the mental health of LGBTQ students, “who are captive in this classroom looking at it.”

Boston Globe columnist Jeff Jacoby sides firmly with Morrison, writing:

In court filings, Middleborough’s lawyers argue that the school was entitled to suppress Morrison’s message out of concern that it could have led to “disruption.” Yet contrary messages are permitted. No discipline was imposed when a student came to class in a “He she they, it’s all okay” T-shirt. School administrators cannot have it both ways, allowing students to express the popular side of a debatable issue but silencing those who disagree because their opinion might provoke an angry reaction. The First Amendment does not bow to the heckler’s veto.

My own opinion is that this is not as simple as Jacoby makes it seem. As Jacoby himself notes, public school students have limited free speech rights when they are on school grounds. And though there’s a certain logic to the either/or choice Jacoby presents, it doesn’t hold up to closer scrutiny. An anti-LGBTQ message expresses animosity toward specific people, including fellow students whose orientation is something other than he or she. A pro-LGBTQ message affirms everyone’s humanity without — and this is the key — expressing any animosity toward people like Morrison who hold a different viewpoint.

Given that difference, it seems to me that Middleborough school officials got it right. Based on the Reuters report, it sounds like the appeals court is likely to agree when it issues its ruling.

A NH publisher faces sentencing, while a small town in Mass. says no to drag

On December 13, 2023

North Brookfield Town Hall. Photo (cc) 2009 by John Phelan.

A New Hampshire newspaper publisher has been found guilty of publishing political advertising that did not include legally required labeling. Debra Paul was convicted of five misdemeanor counts in a bench trial presided over by Derry District Court Judge Kerry Steckowych, according to Damien Fisher of the nonprofit news organization InDepthNH. Sentencing is scheduled to take place Dec. 20. The 64-year-old publisher faces a possible sentence of one year in prison and a $2,000 fine on each of the five counts.

I’ve been following this case for more than a year because of its absurdity. The state attorney general’s office says that Paul broke the law on several occasions by publishing ads for local candidates and warrant articles in two weekly newspapers that she owned, the Londonderry Times and the Nutfield News, the latter of which has stopped publishing. It seems to me that someone — maybe the state legislature, which could correct this travesty — deserves a New England Muzzle Award. Two reasons:

The first is that lawmakers in the Live Free or Die State have decided, for whatever reason, that minor violations of campaign laws should amount to crimes rather than civil offenses. I’d be very surprised if Paul does any time behind bars, but the threat is there, and she’s been living with it for more than a year, when the charges were initially filed.
The second is that even though the First Amendment allows for the regulation of political advertising, there was no intent to deceive. In my first post on this case, I reproduced a candidate ad that appeared in one of Paul’s papers. It’s properly labeled as a “Political Advertisement,” but if that was removed, would anyone think it’s anything other than an ad? Of course not. Enforcement ought to be reserved for deliberately deceptive political ads, such as those that could be confused with actual news articles.

We’ll see what Dec. 20 brings. I hope that Judge Steckowych hits Paul with, at worst, a token fine — and has something to say about governmental overreach into an arena where it can do the most damage: political speech.

***

The select board in North Brookfield, Massachusetts, and two of its members have been sued by the ACLU of Massachusetts because they refused to approve a 2024 Pride celebration on the grounds that the event is scheduled to include a drag performance. The lawsuit was filed in conjunction with the Rural Justice Network, which is headquartered in North Brookfield and whose Facebook page describes the organization as providing “education that informs an equitable and peaceful society in Rural America.” Carol Rose, the ACLU’s state executive director, said in a press release:

This is discrimination based on the viewpoint our clients seek to express: that all members of the community deserve to live and participate fully, openly, freely, and joyously. Let’s be clear: The government has no right to censor LGBTQ+ people or their right to assemble and express themselves.

The two individual members who were sued, chair Jason Petraitis and vice chair John Tripp, both voted against the permit, and are thus receiving New England Muzzle Awards. There are only three members of the board, which means they comprise a majority. It also seems pretty rich that a three-member body would have both a chair and a vice chair. The third member, Elizabeth Brooke Canada, has a title, too — she’s the clerk.

According to the ACLU, Petraitis and Tripp are recidivists, having also voted against allowing the Rural Justice Network to include a drag performance during a 2023 event, which was held anyway after the ACLU and the town’s lawyer intervened.

Jeff A. Chamer of Worcester’s Telegram & Gazette has quite a report on the board meeting at which the latest permit application was rejected. The highlight is Petraitis telling a representative from the Rural Justice Network, “You can get the approvals from other people, but the same thing’s gonna happen this year that happened last year: I’m not voting for it. If you’re not gonna have that stuff hidden from kids, I’m not voting for it.”

And when Canada suggested to Petraitis that failure to approve the permit would violate the town’s parks and recreation policy, Petraitis responded: “I really could care less.”

Canada then offered a motion to approve the permit, which was rejected on a 2-1 vote.