A federal appeals court rules that NH’s criminal libel law is constitutional

The 1735 trial of John Peter Zenger

If we know anything about libel law, then we know that false, defamatory speech is not a crime. It’s a civil matter, to be worked out between the two parties in court. Right? Well … hold on.

On Tuesday, the U.S. Court of Appeals for the First Circuit ruled that New Hampshire’s criminal-libel statute passes constitutional muster. The case was especially pernicious because the defendant, Robert Frese, was charged with claiming that the police chief in his town of Exeter was a coward who had “covered up for a dirty cop.” That statement may be entirely false; but the idea that someone could be charged with a misdemeanor for criticizing the police is chilling indeed.

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In 2019, I gave the Exeter Police Department a New England Muzzle Award for charging Frese with a misdemeanor, writing that the New Hampshire law amounted to “seditious libel, making it a crime to criticize the government.” It’s something we thought had faded away with John Peter Zenger, a New York printer who was acquitted nearly 300 years ago.

But Judge Jeffrey Howard, noting that the Supreme Court’s landmark 1964 Times v. Sullivan decision does not protect knowingly false, defamatory speech directed at public officials, ruled that Frese did not have a case. Howard wrote:

Mindful of the Supreme Court’s guidance that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]” we conclude that Frese’s allegations fall short of asserting viable constitutional claims.

No one would be surprised that Howard would assert that Times v. Sullivan doesn’t protect knowingly false, defamatory statements. But his assertion that such statements may form the basis of a criminal case rather than a civil lawsuit is worrisome — especially at a time when there are rumbles coming out of the Supreme Court that it may be inclined to dial back libel protections, as I wrote for GBH News last year.

Judge Howard and his colleagues had a chance to stand up for freedom of speech. Instead, they chose something else.

City Hall closes out 200-plus public records requests, citing its own lassitude

Boston City Hall. Photo (cc) 2009 by Marissa Babin.

The state’s weak public-records law, combined with the city of Boston’s lax response to requests for documents, has led to 221 such requests being terminated. Sean Philip Cotter reports in the Boston Herald:

Boston’s records office cited its own inaction in closing 221 public records requests in total, the city now says, going back to March 29, 2021, jumping the total number up significantly from what the office originally offered.

The city is taking the position that because it never responded to previous requests, those seeking them must no longer want them. Justin Silverman, executive director of the New England First Amendment Coalition, told me by email:

Up until Cotter’s reporting, Boston had a policy of automatically closing out public records requests based on its own inaction. Essentially the city was saying in at least 200 cases, because we’ve taken too long to get back to you, we’re going to assume you no longer want the records you requested. That’s one way to shut up people looking for information.

Needless to say, this is not a good look for Mayor Michelle Wu or Shawn Williams, the city’s records access officer. Nor is it especially new. Back in June, Colman Herman reported for CommonWealth Magazine that 98 public records appeals had been filed with the secretary of state’s office “because the filers were dissatisfied with the city’s responses or lack of a response.” The secretary of state sided with the filers on 90 occasions and with the city just eight times. But don’t expect much to happen — the state’s public records law is among the weakest in the country.

According to Cotter’s article in the Herald, Wu has promised to do better, with her press office saying that the city ended its practice of automatically closing out public records requests earlier this summer. “The city has stressed that transparency, which Wu campaigned on, is a top priority,” Cotter wrote.

Wu will mark her first year as mayor next month. It’s time for her to start making good on her promise.

A NH newspaper publisher is arrested and charged with running illegal political ads

In a bizarre case that raises important First Amendment issues, a New Hampshire newspaper owner has been arrested and charged with publishing political ads that the state attorney general’s office claims failed to comply with disclosure laws.

According to Nancy West of InDepthNH, the ads failed to include the words “Political Advertisement,” which is a violation of state law. The publisher, Debra Paul of the Londonderry Times, faces six misdemeanor counts. If she’s found guilty, she could be fined $2,000 or even sentenced to prison for a year. “I would like to think the attorney general’s office has more important matters to deal with than to send press releases out on misdemeanors such as this,” Paul said, according to West. “With multiple unsolved homicides over the past year, this seems a bit absurd.”

According to a statement issued by the office of Attorney General John Formella, the charges involve incidents dating back as far as 2019:

Ms. Paul, publisher of the Londonderry Times newspaper, was previously investigated and warned against such conduct on two prior occasions by the Attorney General’s Office Election Law Unit. Those instances ended with formal letters being issued to her in 2019 and 2021. A ‘final warning’ letter issued by the Election Law Unit in September of 2021 warned Ms. Paul that all political advertising must be properly labeled as such in her publication.

Paid advertising — even political advertising — is a form of commercial speech, and thus doesn’t carry with it the same protections as other forms of speech. Nevertheless, the case against Paul seems absurd. I flipped through the most recent PDF edition of the Londonderry Times and found a couple of political ads, including the one I’ve embedded here. It’s properly labeled; I’m sure at this point Paul would just as soon avoid a seventh count. But if it didn’t say “Political Advertisement,” would you think it’s anything other than a political ad? Of course not.

At the very least, New Hampshire law ought to recognize whether there was an intent to deceive. There is obviously no deceptive intent here. And Formella has placed himself in the running for a 2023 New England Muzzle Award. Paul is scheduled to be arraigned on Oct. 19. Not only should the judge immediately dismiss the charges against Paul, but they should also sanction the attorney general.

The Mystic Valley Charter School is once again accused of discrimination

Note: I’ve blurred out the school staff member’s name

The Mystic Valley Regional Charter School is back in the news and, as usual, it’s for all the wrong reasons. This time it’s for sending a Muslim female student home because she was wearing a hijab in violation of the school’s uniform policy, according to Lara Salahi of NBC Boston. The school admitted to it and said all the family needed to do was seek an accommodation ahead of time. But why should they have to ask permission to practice their religion?

In a message sent out on Aug. 19, School Supt. Alexander Dan claims that the brouhaha was the result of “one of the child’s older siblings posting misleading information about this issue on social media.” Yet the “School Uniform Compliance Form” is as clear as can be — the student was punished for wearing a hijab without permission, an obvious violation of her First Amendment right to freedom of religion. “Hijab” is misspelled “jihab,” which, as one Facebook wag noticed, manages to combine “hijab” with “jihad.”

Mystic Valley is a public charter school that receives tax money.

Dan’s message is remarkably self-pitying, as he goes on to cite — and link to an audio recording of — a threatening message received by a school staff member. The message, Dan writes, “contains extremely offensive, obscene language,” and Malden Police were notified. Obviously that shouldn’t have happened, but this is about the school’s ongoing racist practices rather than the reaction to those practices.

In 2017, I gave Mystic Valley a GBH News New England Muzzle Award for banning hair extensions, an action that disproportionately affected young Black women. Black students with long braids and dreads were taken to the office and inspected to see if they were wearing extensions. Punishment was meted out, including detention and suspension from activities such as athletics and the prom. That fiasco led to an investigation by Attorney General Maura Healey and a settlement in which the school promised to behave itself in the future. Just recently, Gov. Charlie Baker signed into law the CROWN Act, which bans discrimination on the basis of hair style and which was motivated in part by Mystic Valley’s actions.

In 2020, The Boston Globe’s Hayley Kaufman reported on concerns among alumni that the school was hampered by a “culture that penalized students who spoke out about inequities, while seeming to shrug off reports of bias.”

And now this. The time has come for the state to mete out some serious penalties.

By the way … sorry for the reproductions. I doubt you’ll be able to read them on a phone, but you should be able to read them on a laptop or tablet.

Texas newspaper publisher John Garrett tells us why ‘Print Ain’t Dead’

John Garrett

On this week’s edition of the “What Works” podcast, Ellen Clegg and I talk with John Garrett, who, along with his wife, Jennifer, started the monthly Community Impact Newspaper in 2005 in Texas. They had three full-time employees and covered two towns in Texas, Round Rock and Pflugerville.

Community Impact expanded into Arizona and Tennessee, and by 2018, Forbes reported, the Garretts had 220 employees and annual revenue of $27 million. They have an online presence, of course, but they also believe in print: their newspapers are distributed by mail every month. They even opened their own printing plant to handle their newspaper and other jobs and have a sign out front that says: “Print Ain’t Dead.”

But as we prepared for this podcast, John told us they’ve just made some tough decisions. They sold their Phoenix operations and closed their small Nashville outlet. They’ve decided to focus on Texas, where their business is doing well, and they have fresh plans for the future there.

Ellen and I devote the entire Quick Takes segment of the podcast to the New England Muzzle Awards, a Fourth of July roundup of outrages against freedom of speech and of the press in the six New England states. The awards were conceived of by my friend and occasional collaborator Harvey Silverglate, the noted Boston civil-liberties lawyer. For many years, they were published by the late, lamented Boston Phoenix. They’ve been hosted by GBH News since 2013, and this year marks their 25th anniversary.

You can listen to our conversation here and subscribe through your favorite podcast app.

The 2022 New England Muzzle Awards: Spotlighting 10 who diminish free speech

Illustration by Meryl Brenner / GBH News

A Boston mayor who trampled on a religious group’s right to freedom of expression. A Worcester city manager who trampled on the public’s right to know about police misconduct. A New Hampshire state legislator who trampled on teachers’ rights by demanding that they take a “loyalty oath” promising not to teach their students about racism.

These are just a few of the winners of the 2022 New England Muzzle Awards.

This year is the 25th anniversary of the Muzzles, a Fourth of July roundup of outrages against freedom of speech and of the press in the six New England states.

Read the rest at GBH News.

Muzzle follow-up: Rhode Island Supreme Court strikes down ‘civil death’ law

Peter Neronha

A Rhode Island law that was the subject of a 2021 GBH News Muzzle Award has been struck down by that state’s Supreme Court.

The Associated Press reports that Rhode Island’s “civil death” law, under which anyone serving a life sentence was regarded as dead with respect to having access to the justice system, “deprives those persons imprisoned at the ACI for life of their right to bring civil actions in our state courts.” (The ACI is the Adult Correctional Institutions.) The bizarre law stated:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.

Last July I awarded a New England Muzzle to Rhode Island’s attorney general, Peter Neronha, a Democrat, for his overzealous defense of a law that didn’t exist in any other state. Among other things, Neronha argued that life in prison — or, for that matter, the death penalty — are more severe punishments than civil death yet pose no constitutional issues.

In fact, as the Rhode Island ACLU pointed out, there are punishments that many would regard as worse than life in prison, or even death. As the ACLU’s state executive director, Steven Brown, explained, civil death means that “an inmate … serving a life sentence could be waterboarded, beaten mercilessly by guards, or held in a cell and denied all food and water, but have no access to our state courts to challenge these egregious violations of his constitutional rights.”

In a press release, the Rhode Island ACLU hailed Wednesday’s decision as “an important victory for the principle that the courts should be open to all for redress.”

N.H.’s retiring secretary of state won a Muzzle Award and was an early Big Lie enabler

Photo (cc) 2016 by Charlene McBride

Bill Gardner, who announced Monday that he won’t seek re-election as New Hampshire’s secretary of state after nearly a half-century in office, won a New England Muzzle Award from GBH News in 2017 for his obsession with cracking down on “ballot selfies.” Here’s the item:

Who would have thought that we’d end up awarding two Muzzles in connection with a New Hampshire ban on “ballot selfies”? Yet the absurd law, under which you could be fined $1,000 for taking a photo of your completed ballot and posting it on social media, simply will not die.

In 2015 we gave a Muzzle to the prime mover behind the legislation. This year we are awarding the statuette to New Hampshire Secretary of State Bill Gardner, who lost in the U.S. Court of Appeals last fall and then, this past April, failed to persuade the Supreme Court to take up the case. Even that wasn’t enough to stop his crusade. “There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner told New Hampshire Public Radio. Has anyone got a wooden stake?

A little background: In 2015 the Muzzle went to Timothy Horrigan, a Democratic state legislator from Durham, who pushed the ban as a way of preventing vote-buying and voter coercion — never mind that there hadn’t been any reported instances of ballot selfies being linked to those nefarious practices.

Selfie-posting voters protested, including State Representative Leon Rideout, a Lancaster Republican. The federal courts got involved. Rather than backing off, the state continued to fight for the law, none more ardently than Gardner.

Theoretically, the concerns raised by Horrigan, Gardner, and others could become reality. But there is no evidence that they have, and the courts do no look favorably upon abridgements of the First Amendment without having a very good reason. New Hampshire is not the only state to ban ballot selfies, so the Supreme Court’s refusal to take up the case could have national implications.

The appeals court’s ruling said in part: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: a picture is worth a thousand words.”

Gardner, nominally a Democrat, also came under fire for refusing to step down from President Donald Trump’s bogus voting commission after the chair of that commission wrote a piece for the right-wing website Breitbart falsely claiming that Trump had actually won New Hampshire in 2016.

Don’t let the door hit you on the way out, Mr. Secretary.

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From COVID to our crisis of democracy, 2021 turned out to be a scant improvement over 2020

Photo (cc) 2021 by Blink O’fanaye

Previously published at GBH News.

Hopes were running high when we all turned the calendar to 2021. Would the worst 12 months in anyone’s memory give way to the best year of our lives?

Not quite. Yes, it was better than 2020, but 2021 was hardly a return to paradise. The joy of vaccinations gave way to the reality that COVID-19 is likely to be with us for a long time. The economy recovered rapidly — accompanied by the highest rate of inflation in 40 years. Worst of all, the end of the Trump presidency morphed into a crisis of democracy that is starting to look as ominous as the run-up to the Civil War.

During the past year, I’ve been struggling to make sense of the highs, the lows and the in-betweens through the prism of the media. Below are 10 of my GBH News columns from 2021. They’re in chronological order, with updates on many of the pieces posted earlier this year. If there’s a unifying theme, it’s that we’re in real trouble — but that, together, we can get through this.

The end of the Trump bump, Jan. 27. Even as he was denouncing journalists as “enemies of the people,” Donald Trump, both before and during his presidency, was very, very good for the media. Cable TV ratings soared. The New York Times and The Washington Post signed up subscribers by the bucketload. Several weeks after Trump departed from the White House, though, there were questions about what would happen once he was gone. We soon got an answer. Even though Trump never really left, news consumption shrank considerably. That may be good for our mental health. But for media executives trying to make next quarter’s numbers, it was an unpleasant new reality.

Local news in crisis, Feb. 23. The plague of hedge funds undermining community journalism continued unabated in 2021. The worst newspaper owner of them all, Alden Global Capital, acquired Tribune Publishing and its eight major-market papers, which include the Chicago Tribune, New York’s Daily News and, closer to home, the Hartford Courant. When the bid was first announced, there was at least some hope that one of those papers, The Baltimore Sun, would be spun off. Unfortunately, an epic battle between Alden and Baltimore hotel mogul Stewart Bainum resulted in Alden grabbing all of them. Bainum, meanwhile, is planning to launch a nonprofit website to compete with the Sun that will be called The Baltimore Banner.

The devolution of Tucker Carlson, April 15. How did a stylish magazine writer with a libertarian bent reinvent himself as a white-supremacist Fox News personality in thrall to Trump and catering to dangerous conspiracy theories ranging from vaccines (bad) to the Jan. 6 insurrection (good)? There are millions of possible explanations, and every one of them has a picture of George Washington on it. Carlson got in trouble last spring — or would have gotten in trouble if anyone at Fox cared — when he endorsed “replacement theory,” a toxic trope that liberal elites are deliberately encouraging immigration in order to dilute the power of white voters. A multitude of advertisers have bailed on Carlson, but it doesn’t matter — Fox today makes most of its money from cable fees. And Carlson continues to spew his hate.

How Black Lives Matter exposed journalism, May 26. A teenager named Darnella Frazier exposed an important truth about how reporters cover the police. The video she recorded of Minneapolis police officer Derek Chauvin literally squeezing the life out of George Floyd as he lay on the pavement proved that the police lied in their official report of what led to Floyd’s death. For generations, journalists have relied on law enforcement as their principal — and often only — source for news involving the police. That’s no longer good enough; in fact, it was never good enough. Frazier won a Pulitzer Prize for her courageous truth-telling. And journalists everywhere were confronted with the reality that they need to change the way they do their jobs.

The 24th annual New England Muzzle Awards, July 1. For 24 years, the Muzzle Awards have singled out enemies of free speech. The Fourth of July feature made its debut in The Boston Phoenix in 1998 and has been hosted by GBH News since 2013, the year that the Phoenix shut down. This year’s lead item was about police brutality directed at Black Lives Matter protesters in Boston and Worcester the year before — actions that had escaped scrutiny at the time but that were exposed by bodycam video obtained by The Appeal, a nonprofit news organization. Other winners of this dubious distinction included former Boston Mayor Marty Walsh, retired Harvard Law School professor Alan Dershowitz and the aforementioned Tucker Carlson, who unleashed his mob to terrorize two freelance journalists in Maine.

How to help save local news, July 28. Since 2004, some 2,100 newspapers have closed, leaving around 1,800 communities across the country bereft of coverage. It’s a disaster for democracy, and the situation is only growing worse. The Local Journalism Sustainability Act, a bipartisan proposal to provide indirect government assistance in the form of tax credits for subscribers, advertisers and publishers, could help. The bill is hardly perfect. Among other things, it would direct funds to corporate chains as well as to independent operators, thus rewarding owners who are hollowing out their papers. Nevertheless, the idea may well be worth trying. At year’s end, the legislation was in limbo, but it may be revived in early 2022.

Democracy in crisis, Sept. 29. As summer turned to fall, the media began devoting some serious attention to a truly frightening development: the deterioration of the Republican Party into an authoritarian tool of Trump and Trumpism, ready to hand the presidency back to their leader in 2024 through a combination of antidemocratic tactics. These include the disenfranchisement of Black voters through partisan gerrymandering, the passage of new laws aimed at suppressing the vote and the handing of state electoral authority over to Trump loyalists. With polls showing that a majority of Republicans believe the 2020 election was stolen, it’s only going to get worse in the months ahead.

Exposing Facebook’s depravity, Oct. 27. The social media giant’s role in subverting democracy in the United States and fomenting chaos and violence around the world is by now well understood, so it takes a lot to rise to the level of OMG news. Frances Haugen, though, created a sensation. The former Facebook executive leaked thousands of documents to the Securities and Exchange Commission and spoke out — at first anonymously, in The Wall Street Journal, and later on “60 Minutes” and before a congressional committee. Among other things, the documents showed that Facebook’s leaders were well aware of how much damage the service’s algorithmic amplification of conspiracy theories and hate speech was causing. By year’s end, lawyers for Rohingya refugees from Myanmar were using the documents to sue Facebook for $150 billion, claiming that Mark Zuckerberg and company had whipped up a campaign of rape and murder.

COVID-19 and the new normal, Nov. 17. By late fall, the optimism of June and July had long since given way to the reality of delta. I wrote about my own experience of trying to live as normally as possible — volunteering at Northeastern University’s long-delayed 2020 commencement and taking the train for a reporting trip in New Haven. Now, of course, we are in the midst of omicron. The new variant may prove disastrous, or it may end up being mild enough that it’s just another blip on our seemingly endless pandemic journey. In any case, omicron was a reminder — as if we needed one — that boosters, masking and testing are not going away any time soon.

How journalism is failing us, Dec. 7. Washington Post columnist Dana Milbank created a sensation when he reported the results of a content analysis he had commissioned. The numbers showed that coverage of President Joe Biden from August to November 2021 was just as negative, if not more so, than coverage of then-President Trump had been during the same four-month period a year earlier. Though some criticized the study’s methodology, it spoke to a very real problem: Too many elements of the media are continuing to cover Trump and the Republicans as legitimate political actors rather than as what they’ve become: malign forces attempting to subvert democracy. The challenge is to find ways to hold Biden to account while avoiding mindless “both sides” coverage and false equivalence.

A year ago at this time we may have felt a sense of optimism that proved to be at least partly unrealistic. Next year, we’ll have no excuses — we know that COVID-19, the economy and Trumpism will continue to present enormous challenges. I hope that, at the end of 2022, we can all say that we met those challenges successfully.

Finally, my thanks to GBH News for the privilege of having this platform and to you for reading. Best wishes to everyone for a great 2022.

The BPD officer who helped win a Muzzle Award gets off with a slap on the wrist

Video of Boston Police Sgt. Clifton McHale bragging about driving his cruiser into protesters was at the heart of our lead GBH News Muzzle Award for 2021. The Muzzle was giving to the Boston and Worcester police departments for their violent suppression of Black Lives Matter demonstrations last year following the police killings of George Floyd and Breonna Taylor.

Incredibly, McHale is being let off with a slap at the wrist and has returned to duty. Eoin Higgins, who obtained bodycam footage of McHale and other officers in the original story for The Appeal last December, broke the news of McHale’s unconscionably short suspension of eight to 10 days on Thursday for his newsletter, The Flashpoint.

“It makes you wonder what a Boston Police officer has to do to get fired,” attorney Carl Williams, who originally provided the bodycam footage to Higgins, was quoted as saying. “How in an unprecedented time of calls for police accountability can this be happening?”

In the video, McHale can be seen and heard excitedly telling a fellow officer about his exploits:

Dude, dude, dude, I fuckin’ drove down Tremont — there was an unmarked state police cruiser they were all gathered around. So then I had a fucker keep coming, fucking running, I’m fucking hitting people with the car, did you hear me, I was like, “get the fuck—”

But when McHale realizes he’s being caught on tape, he tries to back down:

Oh, no no no no no, what I’m saying is, though, that they were in front, like, I didn’t hit anybody, like, just driving, that’s all.

This is not the first time that McHale has crossed the line. Laura Crimaldi reports in The Boston Globe that McHale served a one-year suspension for a 2005 incident “after an internal investigation concluded he had engaged in ‘inappropriate sexual relations with [a] highly intoxicated woman.'” As Globe columnist Adrian Walker writes, “Clifton McHale still carries a badge, and that fact shouldn’t sit well with anyone in Boston.”

Despite his boasting, apparently McHale didn’t actually drive his cruiser into anyone. But that doesn’t mean he should have gotten off with such a light penalty. In fact, he should have been fired.

Acting Mayor Kim Janey denounced McHale’s light punishment. And whoever wins the mayoral election, Michelle Wu or Annissa Essaibi George, is going to have her hands full in attempting to reform the Boston Police Department.

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