Supreme Judicial Court – Media Nation

In a lawsuit against Meta, the state’s highest court will rule on the limits of Section 230

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

Section 230 of the Communications Decency Act of 1996 protects website owners from liability over third-party content. The classic example would be an anonymous commenter who libels someone. The offended party would be able to sue the commenter but not the publishing platform, although the platform might be required to turn over information that would help identify the commenter.

Sign up for free email delivery of Media Nation. You can also become a supporter for just $6 a month and receive a weekly newsletter with exclusive content.

But where is the line between passively hosting third-party content and activity promoting certain types of material in order to boost engagement and, thus, profitability? That question will go before the Massachusetts Supreme Judicial Court on Friday, reports Jennifer Smith of CommonWealth Beacon.

At issue is a lawsuit brought against Meta by 42 state attorneys general, including Andrea Campbell of Massachusetts. Meta operates Facebook, Instagram, Threads and other social media platforms, and it has long been criticized for using algorithms and other tactics that keep users hooked on content that, in some cases, provokes anger and depression, even suicide. Smith writes:

The Massachusetts complaint alleges that Meta violated state consumer protection law and created a public nuisance by deliberately designing Instagram with features like infinite scroll, autoplay, push notifications, and “like” buttons to addict young users, then falsely represented the platform’s safety to the public. The company has also been reckless with age verification, the AG argues, and allowed children under 13 years old to access its content.

Meta and its allies counter that Section 230 protects not just the third-party content they host but also how Facebook et al. display that content to its users.

In an accompanying opinion piece, attorney Megan Iorio of the Electronic Privacy Information Center, computer scientist Laura Edelson of Northeastern University and policy analyst Yaël Eisenstat of Cybersecurity for Democracy argue that Section 230 was not designed to protect website operators from putting their thumbs on the scales to favor one type of third-party content over another. As they put it in describing the amicus brief they have filed:

Our brief explains how the platform features at the heart of the Commonwealth’s case — things like infinite scroll, autoplay, the timing and batching of push notifications, and other tactics borrowed from the gambling industry — have nothing to do with content moderation; they are designed to elicit a behavior on the part of the user that furthers the company’s own business goals.

As Smith makes clear, this is a long and complex legal action, and the SJC is being asked to rule only on the narrow question of whether Campbell can move ahead with the lawsuit to which she has lent the state’s support. (Double disclosure: I am a member of CommonWealth Beacon’s editorial advisory aboard as well as a fellow Northeastern professor.)

I’ve long argued (as I did in this GBH News commentary from 2020) that, just as a matter of logic, favoring some types of content over others is a publishing activity that goes beyond the mere passive hosting of third-party content, and thus website operators should be liable for whatever harm those decisions create. That argument has not found much support in the courts, however. It will be interesting to see how this plays out.

A second Muzzle Award to the Mystic Valley charter school — this time over a public records dispute

Imagine, if you will, a public school, supported by taxpayer dollars, claiming that it’s a private corporation and doesn’t have to comply with the state’s public records law. It is absurd on the face of it. Yet that’s what the Mystic Valley Regional Charter School is arguing in a case before the Supreme Judicial Court.

Sign up for free email delivery of Media Nation. You can also become a supporter for just $6 a month and receive a weekly newsletter with exclusive content.

According to an account by Jennifer Smith in CommonWealth Beacon, at least two of the justices appeared to be unimpressed by the Malden-based school’s claims when the case was argued at a recent hearing.

“You’re in real trouble,” Justice Scott Kafker told Charles Waters, a lawyer for the school, explaining, “It quacks like a duck, it waddles like a duck, it paddles like a duck.” Added Justice Dalia Wendlandt:

I understand charter schools were created to be independent in certain ways, to foster innovation in education and have the ability to do that in a way that the average public school does not. Good. But that doesn’t carry you to the argument that they’re not subject to the public record law.

At issue are some 10 instances in which public records were sought by a Facebook-based local news organization called the Malden News Network, Commonwealth Transparency and Malden mayoral candidate Lissette Alvarado. Smith reports that the requested information includes “corporate statements, contracts, ledgers, lease records, conflict of interest disclosures filed by board members, payments made to employees or professional services, and confidentiality and non-disclosure agreements.”

The case dates back to mid-2023, when state Attorney General Andrea Campbell filed a legal action against the school to force it to comply with the public records law. For fighting so stubbornly to conduct the public’s business behind closed doors, the Mystic Valley school has earned a New England Muzzle Award — its second. In 2017, I awarded a Muzzle to the school for discriminating against Black students by banning long braids and dreads. In 2022, the school sent a female Muslim student home because she was wearing a hijab in violation of the student dress code.

Despite the school’s reputation for academic excellence, there is clearly a culture problem that needs to be addressed.

According to Smith’s report in CommonWealth Beacon, Mystic Valley is claiming that it’s not subject to the public records law because “Charter schools, in their view, are public schools that are structured and treated in some ways more like corporations.” Among those disagreeing is the Massachusetts Charter Public School Association. Then again, Mystic Valley is one of just three charter schools that are not members of that organization.

In an editorial (sub. req.) calling for the SJC to rule against Mystic Valley, The Boston Globe observes that the school has already lost in decisions rendered by the state supervisor of records, the attorney general and a Superior Court judge. The editorial concludes: “Charter schools have been a great asset to Massachusetts families; indeed, Mystic Valley has been ranked as one of the best schools in the state. But that’s not the issue here. The issue is that the public has a right to know how their tax dollars are being spent.”

Surveillance cameras in Brookline, Mass., raise serious questions about civil liberties

The surveillance state has come to Brookline, Massachusetts. Sam Mintz reports for Brookline.News that Chestnut Hill Realty will set up license-plate readers on Independence Drive near Hancock Village, located in South Brookline, on the Boston border. The readers are made by Flock Safety, which is signing an agreement with the Brookline Police Department to use the data. The data will also be made available to Boston Police.

Sign up for free email delivery of Media Nation. You can also become a supporter for just $6 a month and receive a weekly newsletter with exclusive content.

Two months ago I wrote about a campaign to keep Flock out of the affluent community of Scarsdale Village, New York. The story was covered by a startup local website, Scarsdale 10583, and after a period of months the contract was canceled in the face of rising opposition. Unfortunately, Scarsdale Village is the exception, as Flock Safety, a $7.5 billion company, has a presence in 5,000 communities in 49 states as well as a reputation for secretive dealings with local officials.

Adam Gaffin of Universal Hub reports that the state’s Supreme Judicial Court ruled in 2020 that automated license-plate readers are legal in Massachusetts. Gaffin also notes that, early this year, police in Johnson County, Texas, used data from 83,000 Flock cameras across the U.S. in a demented quest to track down a woman they wanted to arrest for a self-induced abortion. Presumably Texas authorities could plug into the Brookline network with Flock’s permission.

Mintz notes in his Brookline.News story that Flock recently opened an office in Boston and that its data has been used by police in dozens of Massachusetts communities. He also quotes Kade Crockford of the ACLU of Massachusetts as saying that though such uses of Flock data as identifying stolen cars or assisting with Amber Alerts isn’t a problem, “Unregulated, this technology facilitates the mass tracking of every single person’s movements on the road.”

The cameras could also be used by ICE in its out-of-control crackdown on undocumented (and, in some cases, documented) immigrants. This is just bad news all around, it’s hard to imagine that members of the public would support it if they knew about it.

A Muzzle Award for a judge who tried to stop a Muslim witness from testifying while covering her face

It was a decision oblivious to religious and cultural differences. Roxbury Municipal Court Judge Kenneth Fiandaca ruled recently that a Muslim woman would have to remove her niqab, a religious head scarf that covered most of her face, when she testified against her ex-boyfriend, who was on trial to face charges of domestic violence.

As Sean Cotter reported in The Boston Globe, the Suffolk County district attorney’s office said the ruling was “tantamount to a dismissal” since the woman had no intention of violating her religious beliefs by complying. And thus we present a New England Muzzle Award to Judge Fiandaca for his insistence on following the letter but ignoring the spirit of the Constitution.

Fiandaca was relying on the Sixth Amendment, which guarantees that a criminal defendant has the right “to be confronted with the witnesses against him.” In nearly all cases, that means a face-to-face encounter. Fiandaca was of the opinion that the accuser’s niqab, which covered all of her face except a slit for her eyes, amounted to a denial of the defendant’s rights.

Become a supporter of Media Nation for just $6 a month. You’ll receive a weekly newsletter with exclusive commentary, a roundup of the week’s posts, photography and a song of the week.

If Fiandaca’s ruling had stood, the defendant would have immediately walked free without the jury having a chance to hear the woman’s testimony that “he was drunk and invaded her house, grabbed her by the throat, and punched her in the face while her current partner tried to fend him off,” as Cotter reported.

Fortunately a more legally astute mind prevailed. A single justice of the state’s Supreme Judicial Court, Serge Georges Jr., ruled against Fiandaca, writing, “The right to confrontation is not absolute,” explaining that other courts have “recognized limited and exceptional circumstances in which a defendant’s rights under the Sixth Amendment … appropriately yield to competing constitutional interests.”

The woman was thus allowed to testify while wearing her niqab, and a jury found the defendant not guilty. But that’s not the point. The point is that her right to practice her Muslim faith should not have prevented her from appearing in court to give her version of what happened. Thanks to Justice Georges, her religious liberties were recognized, and justice was done.

The ACLU offers guidelines for how public officials can still maintain order

Despite a ruling by the state’s highest court that the Southborough select board violated a woman’s free speech rights by shutting her down after she referred to a member as a “Hitler,” local governmental bodies can still enforce rules of decorum — as long as it’s done in a content-neutral manner.

The ACLU of Massachusetts has sent a letter to the Massachusetts Municipal Lawyers Association and the Massachusetts Association of School Committees offering guidance on how to proceed following the Supreme Judicial Court’s Barron v. Kolenda decision, which found that a local bylaw requiring “civility” violated both the state constitution and the First Amendment.

“We hope to work together to maintain peaceable and orderly meetings and to preserve constitutionally protected input by the public,” according to letter, signed by state ACLU executive director Carol Rose and senior and managing attorney Ruth A. Bourquin. The letter adds: “We understand that there is much to digest in the Court’s opinion and that some public bodies fear the decision will lead to disorderly public meetings. This fear is not warranted.”

The heart of the letter are 10 specific guidelines that local officials can follow in keeping unruly members of the public from getting out of hand. Some of them were outlined by the SJC itself — time limits for public comment and for individual speakers as well as rules that forbid speakers from interrupting each other. Some go beyond that. For instance, the letter says that rules preventing anyone from speaking unless recognized by the chair are lawful, as are limits to topics that are within the jurisdiction of the public body. Needless to say, anyone who threatens violence can be ordered to leave.

As someone who used to spend a considerable amount of time reporting on such meetings back, I think the ACLU’s guidelines contain a lot of common sense, and I hope local officials will take them to heart. Probably nothing could have prevented Louise Barron from calling Southborough select board member a “Hitler.” She was, after all, protesting what she regarded as the board’s violations of the state’s open meeting law, which is a legitimate topic. But if the board had rules in place stating that she couldn’t speak until recognized and was limited to five minutes, the damage would have been contained.

None of this should minimize how vile Barron’s comments were. Her behavior that night was loathsome. Frankly, even though the SJC made the correct decision, Barron should have apologized rather than filing a lawsuit to defend her own disgusting behavior.

You can read the ACLU’s full letter here.

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

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.

SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

Become a member of Media Nation for just $5 a month.

In battle for access, OpenCourt wins another round

OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.

In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.

Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.

Prosecutors, defenders seek to muzzle OpenCourt

Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.

In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.

The request will be heard by a single justice of the SJC.

According to OpenCourt:

As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A. Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….

Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await single justice review.

Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM), from posting archives of its livestreamed footage, a move that was shot down by the SJC.

Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.

OpenCourt wins a crucial First Amendment case

Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)

But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.

Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.

OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.

The SJC’s decision says in part:

We conclude that any order restricting OpenCourt’s ability to publish — by “streaming live” over the Internet, publicly archiving on the Web site or otherwise — existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.

OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.

John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.

What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.