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 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.
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.
Worcester City Hall and Common. Photo (cc) 2015 by Destination Worcester.
For years, the city of Worcester withheld public records about police misconduct that had been sought by the local daily newspaper, the Telegram & Gazette. It’s already cost the hapless taxpayers big-time: Nearly a year ago, an outraged judge ruled against the city and awarded the T&G $101,000 to cover about half the cost of the newspaper’s legal fees. She also assessed the city $5,000 in punitive damages.
That outrageous misconduct, overseen by former city manager Edward Augustus, was the subject of a 2022 New England Muzzle Award, published by GBH News.
Now a three-judge panel of the state Appeals Court is asking a logical question: If the T&G was in the right and the city was in the wrong, why shouldn’t the newspaper be compensated for all or most of its legal fees rather than just half? This week that panel overturned the lower-court ruling and ordered Superior Court Judge Janet Kenton-Walker to consider increasing the legal fees she awarded, according to a report by the T&G’s Brad Petrishen, who first began seeking the records in 2018.
Petrishen quoted Associate Justice John Englander as saying: “At 10,000 feet, what happened here is the newspaper wanted to write about something and it took them three years to get the documents they wanted to write about.”
The proceedings have been followed closely by Andrew Quemere, a journalist who writes a newsletter on public records called The Mass Dump. Quemere published a detailed account this week that includes some particularly entertaining quotes from an exchange Justice Englander had with the city’s lawyer, Wendy Quinn, at oral arguments in December:
“What did the plaintiffs request or push for that they were wrong about?” Englander asked.
Quinn paused for about six seconds before asking Englander to clarify his question.
“What the heck did you spend three years and hundreds of thousands of dollars fighting over if they should have gotten [the records]?” Englander asked. “If you had a defense, I’d like to understand what the defense was.”
As Quemere notes, Judge Kenton-Walker has consistently taken the position that the city not only erred and acted in bad faith, ordering that the city turn over the documents that the T&G had sought in June 2021 and then awarding $101,000 in legal fees in February 2022.
Even so, the newspaper appealed, seeking the full $217,000 it had paid — and, as the Appeals Court panel has now ruled, it may very well be entitled to that money. Jeffrey Pyle, a Boston-based First Amendment lawyer who represented the T&G, put it this way at the oral arguments: “To cut [the fees] by 54% sends a message to public records requesters: Don’t bother suing, you’re not going to be made whole even if you win and show that the other side acted in bad faith.”
To make matters worse for city officials, the Department of Justice last November announced that it had launched an investigation to determine whether the police department had used excessive force or engaged in discrimination on the basis of race or gender, although it is not clear whether DOJ was motivated by the T&G’s reporting.
I hope the T&G gets every last dime that it spent on this case. But I should add that the newspaper’s corporate chain owner, Gannett, deserves credit for pursuing this without any guarantee that it would ever be compensated. I criticize Gannett’s cost-cutting frequently in this space, but the company and its predecessor, GateHouse Media, have always been dedicated to fighting for open government, even if it means going to court. They could have told the T&G’s editors to forget about it, but they didn’t.
Finally, a 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.
Londonderry (N.H.) Town Hall. Photo (cc) 2021 by Sdkb.
There’s been a sad development in the case of a New Hampshire newspaper publisher who was criminally charged with running political ads that did not include the required disclosure. Debra Paul announced last Friday that she and her husband, Chris Paul, are closing two of their three weekly newspapers, the Nutfield News and the Tri-Town Times. They will continue to publish the Londonderry Times. She wrote:
It’s been a good 18+ years, all things considered. Chris and I didn’t make millions, but we never expected to. I’ve never felt such delight as when people would come up and thank us, saying it seemed like “their” newspaper. Over the years we have come to know so many amazing people, some we call friends and hope to continue to keep even though we are not printing the paper.
The story of Paul’s arrest was reported last August by the investigative news organization InDepthNH. Paul published ads for political candidates that, in several instances, failed to include the words “Political Advertisement,” a violation of state law. No sentient being could possibly have thought the offending materials were anything other than political ads, but that didn’t stop the state attorney general’s office. At least in theory, Paul could be hit with a $2,000 fine or at least a year in prison.
It sounds like an outrageous breach of First Amendment protections, but the law isn’t necessarily unconstitutional because paid advertising does not enjoy the same protections as other forms of speech. In an odd twist, Debra Paul is also an elected member of Londonderry’s town council — an obvious conflict of interest for a newspaper, although that’s entirely unrelated to her arrest.
I could not find a follow-up, so I don’t know if this ridiculous case against Paul has been disposed of. But I’m going to try to find out.
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.
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:
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.
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.
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.
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.
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.
