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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N.H. legislation would make it harder for the public to access police records

A bill filed in the New Hampshire legislature would make it more difficult for the public to access police records, reversing a recent decision by the state’s supreme court that requires greater openness. The New England First Amendment Coalition reports:

Senate Bill 39 intends to exempt police personnel files, internal investigations and other law enforcement records from the New Hampshire Right-to-Know Law.

If made law, the bill would overturn a New Hampshire Supreme Court decision — Seacoast Newspapers, Inc. v. City of Portsmouth — that ruled such documents were not categorically exempt under the public records statute.

Biking in southern N.H.

We had a great time with friends Saturday on the rail trail in Salem, Windham and Derry, New Hampshire — 18 miles total. There was even a nice little outdoor lunch place along the way.

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The hazards of granting anonymity, Part Infinity

fnc-20130311-scottbrownI’ll leave it to my friend John Carroll to analyze the dust-up between the Boston Globe and the Boston Herald over whether former senator Scott Brown is or isn’t still working for Fox News. (Short answer: he is.) No doubt that’s coming later today.

So just a quick observation. On Wednesday the Globe’s Joshua Miller quoted an unnamed source at Fox who told him that Brown was “out of contract,” thus fueling speculation that Brown was about to jump into New Hampshire’s U.S. Senate race. It turns out, according to the Herald’s Hillary Chabot and Miller’s follow-up report, that Brown was merely between contracts, and that he’s now re-upped.

If I were Miller or an editor at the Globe, I would love to be able to point to a named source at Fox for passing along information that may have been technically accurate but was not actually true. But they can’t, and that’s one of the hazards of granting anonymity.

It’s especially dangerous with Fox. According to NPR media reporter David Folkenflik’s book “Murdoch’s World,” the fair-and-balanced folks once went so far as to leak a false story to a journalist — anonymously, of course — and then denounce him in public after he reported it.

Of course, this all leads to the political question of the moment: Does this mean Brown isn’t running for senator? Or president? Or whatever office he is thought to be flirting with this week?

Update: And here comes John Carroll.

Screen image via Media Matters for America.

Godwin’s law, the speaker and the Concord Monitor

Click to watch video at Patch.com

(This commentary is also online at the Huffington Post and at the New England First Amendment Center.)

Godwin’s law came to New Hampshire earlier this year. And Speaker of the House Bill O’Brien is retaliating against the Concord Monitor in a manner that may violate the First Amendment.

For those unfamiliar with the phrase, Godwin’s law — first espoused by Mike Godwin, a lawyer and veteran Internet free-speech activist — pertains to the tendency of online debate to devolve into Nazi analogies. As Godwin put it some years ago, “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.”

Maybe it’s the Internet effect, but the Nazification of real-world political debate has been under way for some time now. And so it was in mid-May, when state Rep. Steve Vaillancourt, a Republican, grew frustrated with what he saw as efforts by Speaker O’Brien, also a Republican, to silence him. So Vaillancourt directed a toxic remark at O’Brien: “Seig Heil.” He was ejected from the chamber and forced to apologize.

Enter Mike Marland, who draws editorial cartoons for the Concord Monitor. He depicted O’Brien with a Hitler-style mustache, holding a razor. The caption: “If the mustache fits …” You can see the cartoon here, along with a commentary by Monitor editor Felice Belman. Despite having written an editorial taking Vaillancourt to task for his Third Reich-style outburst, Belman defended Marland’s cartoon in defiance of Republican demands that the paper apologize:

When Marland submitted the O’Brien cartoon, there was significant discussion here among the senior editors and our publisher about whether to put it into the paper. In the end, we are not Marland’s censors. He is entitled to his view of the speaker, and his views are his own. This cartoon was harsh, no doubt. But it seemed on point, given last week’s circus. In fact, several Monitor letter writers have made a similar point — in words, if not images.

There matters stood until last Friday, when O’Brien held a news conference in his Statehouse office — and banned two Monitor reporters from attending. Concord Patch editor Tony Schinella, who was among those covering the event, wrote that the reporters, Annmarie Timmins and Matt Spolar, “were told they weren’t invited and were held at bay at the door.” Schinella also shot video of the reporters being turned away (above), and of O’Brien refusing to answer a question as to why he wouldn’t let them in. (Timmins’ own video of the encounter makes for must-see viewing as well.)

O’Brien’s spokeswoman later released a statement: “When the Concord Monitor proves they have chosen to become a responsible media outlet, we’ll be happy to invite them to future media events.”

As the Monitor put it in an editorial, “It’s hard to know which is more startling: a politician attempting to pick his own press corps or the notion that a politician — or a politician’s mouthpiece — gets to decide what constitutes ‘a responsible media outlet.’ Are these people new to this country?”

Now, depending on your point of view, you might think O’Brien’s behavior was either boorish or principled. But perhaps you wouldn’t question his right to do it. Indeed, even the Monitor editorial included this: “There’s nothing requiring O’Brien to let the Monitor into his press conference.”

In fact, though, O’Brien may well have been interfering with the Monitor’s First Amendment right to cover the news.

Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:

A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.

But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.

Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.

The parallel between the Honolulu and Concord situations is pretty obvious, though it’s impossible to say whether a different court would come to the same conclusion nearly 40 years later. In a commentary published by the Monitor, Steven Gordon, a lawyer, argued that O’Brien’s action may well have been an unconstitutional abridgement of the paper’s free-press rights.

I just hope Speaker O’Brien comes to his senses and realizes that the Monitor was well within its rights to run the Hitler cartoon no matter how much he may wish it hadn’t done so. He, on the other hand, has no right to discriminate against a media outlet he doesn’t like.

Romney’s speech and the dispiriting politics of 2012

In my latest for the Huffington Post, I attempt to deconstruct Mitt Romney’s cynical, dishonest victory speech in New Hampshire last night — starting with his amnesia regarding the economic collapse that swept Barack Obama into the presidency.

Last word on the Bradley effect?

If you haven’t read John Judis’ analysis at The New Republic yet, you should. Judis has looked at the numbers from New Hampshire and found that 57 percent of those voting in the Democratic primary were women — substantially more than the 53 percent that had been predicted. Change that assumption, and you’d have had poll numbers within the margin of error. Quod erat demonstrandum.

Where are those college students?

I just got an e-mail from a long-time correspondent who reminded me of something that the cable pundits should have known Tuesday night. Remember when they were saying that Obama still had a chance because the college towns hadn’t reported? Well, guys, the semester hasn’t started yet.

I overlooked that because classes started at Northeastern last week. But we’re on an unusual schedule. Very few other schools start until next week, or in some cases even later. Shouldn’t the folks who make the big bucks have figured that out?

More on the (Tom) Bradley effect

Over at Hub Blog, Jay Fitzgerald has a good post linking to two commentaries by pollsters. In the New York Times, Andrew Kohut argues that a subtle version of the Bradley effect may have made Barack Obama’s support in New Hampshire look stronger than it was — lower-income white voters who might tend to reject a black candidate are also less likely to answer polling questions in the first place.

But John Zogby, in the Huffington Post, says (at least I think this is what he’s saying) that the pollsters didn’t get it wrong so much as they ran out of time. Uh, OK.

More on the Bradley effect

Only this time I’m talking about Bill, not Tom. Robert David Sullivan, one of my editors at CommonWealth Magazine, has analyzed the results of the Hillary Clinton-Barack Obama contest in New Hampshire and finds an eerie resemblance to the 2000 Democratic primary between Al Gore and Bill Bradley.

Apparently the archetype is more important than the person. I can’t see much resemblance between Hillary Clinton and Al Gore, but each appealed to New Hampshire’s more traditional Democrats. And the smug, self-regarding Bradley couldn’t be more different from the electrifying Obama (OK, Obama is a bit self-regarding, too), but both had their base among the affluent, the well-educated and the young.

Robert does things with maps and stats that I can barely comprehend, but he makes a plausible case that the way to win a Democratic primary in New Hampshire is to go after the party regulars. Among other things, unlike young people and independents, they can always be counted on to vote.