An elected school committee that voted unanimously to condemn a newspaper reporter for tweeting out news from a public meeting. A sheriff who flashed his badge while asking store owners to remove posters for his political opponent. Officials in three New England cities who cracked down on panhandlers in clear violation of their free-speech rights.
These are just three of the stories that are featured in the 19th annual New England Muzzle Awards, our Fourth of July roundup of outrages against free speech. All that and Donald Trump, too.
First, though, some good news. Last year we called for reform of the notoriously weak Massachusetts public-records law, which had earned an “F” from the State Integrity Project. At long last, the legislature passed a reform bill, which was signed into law by Governor Charlie Baker on June 3.
The most important part of the law is that, finally, people whose public-records requests are wrongly ignored or turned down may receive expense money to cover their legal fees. The law also puts limits on how much money government agencies can charge for records and mandates that those records be made available electronically when feasible.
“This bill represents a significant step forward for transparency in Massachusetts,” said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, in a statement. “It will do a lot to improve access to public records.”
The law is far from perfect. It still applies only to local government and executive agencies, exempting the governor’s office, the court system, and the legislature. It also extends the amount of time government agencies have to respond to public-records requests—perhaps a reasonable step given how widely ignored the old deadlines were, but something that will have to be monitored.
Another Muzzle note: As we were wrapping up this year’s list, Rhode Island Governor Gina Raimondo vetoed a bill outlawing the posting of so-called revenge porn. As Raimondo rightly observed, “The breadth and lack of clarity may have a chilling effect on free speech. We do not have to choose between protecting privacy rights and respecting the principles of free speech.” We’ll be keeping an eye on this to see if it raises its censorious head during the coming year.
The Muzzle Awards, launched in 1998, were published for many years in the late, great Boston Phoenix, which ceased publication in 2013. This is the fourth year they have been hosted by WGBH News. They take their name from the Jefferson Muzzles, begun in 1992 by the Thomas Jefferson Center for the Protection of Free Expression.
He has “the best words.” He has “a very good brain.” There is “no problem” with the size of his, uh, hands. And now Donald Trump, the presumptive Republican presidential nominee, has a Muzzle Award for abusing federal trademark law in order to silence a small Cambridge-based business run by two Latino immigrants.
Last September the LGBT newspaper Bay Windows reported that the Trump Organization had sent a cease-and-desist letter to President Entertainment of Cambridge, ordering it to end its use of the domain name StopTrump.us, which was its vehicle for selling anti-Trump T-shirts and other merchandise.
“As I’m sure you are aware, the Trump® name is internationally known and famous as a result of Mr. Trump’s long, extensive, and high-profile business and entertainment related activities,” wrote Alan Garten, executive vice president and general counsel for the Trump Organization. “Mr. Trump is the owner of the Trump® name as a trademark, as well as hundreds of additional trademarks that incorporate the Trump® name, all of which we scrupulously protect.”
Trademark law was not meant to censor political speech, especially when it’s aimed at someone running for president. But Garten’s letter had its effect, as the domain name now leads to a dead end.
The founders—immigrants from Mexico and Colombia whose identities Bay Windows did not disclose—said they began their effort to protest Trump’s hate-filled rants. “We are not rapists,” said one. “We are entrepreneurs.” Their plight attracted the attention of media outlets ranging from the Huffington Post to the Wall Street Journal to the Volokh Conspiracy, a prominent legal blog hosted by the Washington Post.
But Trump—or should I say Trump®—got his way. After all, you can’t fight the power unless you can afford to fight the power.
You have never heard of Carlos Velategui before and you’ll probably never hear of him again. He is a commissioner in King County, Wash. And on May 25 he approved a temporary restraining order sought by three companies forcing the removal of public documents that had been obtained by a local activist as the result of a public-records request—a clearly unconstitutional exercise of prior restraint.
Velategui’s impressive legal reasoning will be studied by First Amendment scholars for generations. “There’s no way that I can spend the time to look at all this,” he said, according to an account in the Stranger, an alternative weekly newspaper in Seattle.
The New England angle is that the activist—Phil Mocek—had posted the documents to MuckRock, a Boston-based news organization that specializes in public-records requests. Faced with a court order, MuckRock’s cofounder, Michael Morisy, took the documents down.
This is actually the second Muzzle Award bestowed on someone for demanding that MuckRock remove public documents. In 2011, the winner was a lawyer for the Massachusetts Department of Transitional Assistance who demanded that food-stamp data MuckRock had asked for and received be pulled from the web. Fines and imprisonment were threatened before the state backed off.
The Seattle case involves three companies that make so-called smart meters for the energy industry—Landis+Gyr Technology, Sensus USA, and Trilliant Networks. They claimed that two documents posted to MuckRock contained information that could pose a security threat as well as reveal trade secrets.
The legal maneuvering isn’t over yet. But MuckRock, represented by the Electronic Frontier Foundation, managed to convince King County Superior Court Judge William Downing to overturn the temporary restraining order.
In a statement, the EFF said that “courts must more closely scrutinize requests for orders that prohibit speech or require the removal of content from a website, even if the plaintiff pleads that it’s an emergency.”
And even if it would require, you know, a lot of reading.
Openness in government is a never-ending battle—and sometimes battles won are later lost. Such is the case with the Maine legislature, which will suspend audio and video recordings of committee hearings after this November’s elections.
The decision was made in March by the Legislative Council, a group comprising 10 Democratic and Republican leaders of the legislature who are responsible for managing the operations of the elected body.
According to an editorial in the Bangor Daily News, members of the council argued that people testifying before legislative committees might not know they are being recorded, and that video clips could be taken out of context and used in negative campaign ads.
But those are hardly real concerns. As the editorial noted, people can simply be advised that committee hearings are recorded. As for video clips, some are already available from the Maine Public Broadcasting Network, which records many—but not all—legislative proceedings.
The Daily News rightly called the move “a step backward.” Since the measure would not go into effect another legislative session begins, let’s hope Maine’s elected officials reverse this attempt to keep the public in the dark.
Back when some of us dinosaurs were working in community journalism, the biggest challenge was trying to stay awake at local government meetings. No more. Today’s journalists are expected not just to take notes but to tweet out developments as they happen.
In the case of Lowell Sun reporter Melissa Hanson, they must also be prepared to fend off criticism and sexist remarks when their Twitter coverage fails to comport with elected officials’ view of when is the appropriate time to let the public in on important public business.
Hanson was covering a meeting of the Nashoba Valley Technical School Committee earlier this year when the committee voted, in public session (as required by law), to choose a new superintendent. Hanson tweeted out the name. The candidate later withdrew. And at a subsequent meeting, when the committee decided on someone else, an alternative school committee member, Richard DeFreitas, erupted, “This little lady over there is going to tweet out everything we say!” (DeFreitas later protested that he’d called her a “young lady.” A review of the audio revealed that he called her a “little young lady.”)
As reported by the Boston Globe and in a Sun editorial, committee members then asked Hanson not to tweet out their new choice for a few minutes so they could inform the candidate first. Hanson, as a good reporter serving the public rather than the school committee, declined. And the committee unanimously passed a resolution expressing its “disappointment” in Hanson’s behavior.
“We're disappointed, too,” the Sun said. “We’re disappointed that the futures of hundreds of students could be left in the hands of policymakers who are clueless about government transparency and bereft of common decency.”
Free speech isn’t always free. Sometimes, though, it can be cheaper than denying someone else’s free-speech rights.
Such was the case in Alton, New Hampshire, where the town agreed in May to pay more than $40,000 to a local gadfly named Jeffrey Clay in order to settle a federal civil-rights suit. Clay had been arrested more than a year earlier for mouthing off to the Alton Board of Selectmen—and refusing to stop after he’d been told to shut up.
A video of the incident, posted on the Concord Monitor’s website, shows Clay sitting down before the selectmen and demanding, over and over, that they resign for unspecified misdeeds. He comes across as rambling and abusive, but he never raises his voice. Nevertheless, the selectmen refer to his monologue as “character assassination” and vote after a few minutes to cut him off. A police officer escorts him from the room after he refuses.
A state court last June threw out a charge of disorderly conduct that had been brought against Clay, calling the selectmen’s actions “pure censorship.” The following month Clay filed suit in federal court.
In a statement, Gilles Bissonnette, legal director of the ACLU of New Hampshire, which represented Clay, said, “In a free society, governmental officials are required to tolerate harsh criticism and even a demeaning attitude towards them—including viewpoints that can feel like ‘character assassination’—and cannot discriminate based on these critical viewpoints.”
Clay, for his part, sounded like a gadfly unleashed, telling the Monitor he was looking forward to speaking up at public meetings once again. “I didn’t want to get arrested again for speaking my mind,” he told the Monitor. “I’ve missed being there. I’ve missed participating.”
Here’s a novel twist on the First Amendment. In March, the office of Rhode Island attorney general Peter Kilmartin ruled that a report on the handling of a sexual-abuse case in Warwick was a public document—and one of the officials criticized in the report threatened to sue two local newspapers for defamation if they published that document.
The official in question was Rosemary Healey, the school system’s director of human resources, one of three administrators who were the subject of a report compiled by attorney Vincent Ragosta on behalf of the local school committee. The report looked at how the officials responded to accusations that a junior-high-school science teacher had drawn penises on two female students’ arms. The teacher, Mario Atoyan, was reprimanded but kept his job—at least until he was arrested and charged with abusing a 15-year-old relative.
Despite the AG’s ruling that the so-called Ragosta Report was a public document, Healey’s lawyer, Jeffrey Sowa, threatened to sue the Warwick Beacon and the online-only Warwick Post if he didn’t like how they handled the report. According to the ACLU of Rhode Island, which offered to defend the two news organizations for free, Sowa wrote that the Beacon and the Post “would ‘not be insulated from liability’ for releasing information about the report, and that they should ‘cease and desist from publishing any matters relating to’ Healey.”
To their credit, the two news outlets went ahead and published the report on their websites anyway (see this and this). No legal repercussions have been reported, although the Beacon published a statement from Sowa criticizing the report as “biased” against Healey. Sowa also told the Providence Journal, “If there is a dissemination of false facts, I will protect my client’s rights in accordance with the law, but I never directly indicated a lawsuit.”
The crisis had been averted—but the local press should not have been forced to mobilize against an implied threat that they would be sued for publishing a public document.
Imagine that you’re a store owner and a candidate for sheriff asks you to display a campaign poster in one of your windows. Now imagine that the incumbent sheriff comes along, shows you his badge, and tells you that should take down the poster. What would you do?
Why, you’d take it down, of course. It’s the textbook definition of intimidation by the government—in this case, a law-enforcement official. Which is why the Massachusetts State Ethics Commission fined Suffolk County Sheriff Steven Tompkins $2,500 last September.
According to the commission, in 2013 Tompkins paid a visit to eight Roxbury retailers that were displaying posters for Douglas Bennett. As the commission puts it: “At each of the shops, Tompkins orally identified himself as Sheriff and displayed his official identification. He then requested that each business owner remove Bennett’s campaign signs. All of the business owners complied with Tompkins’s request.”
Tompkins told the commission that he acted as he did because the signs said “Vote for Sheriff Bennett,” which sent a message that it was Bennett, not Tompkins, who was the incumbent. But Tompkins himself had not been elected to the position either—he was appointed in 2013 by then-Governor Deval Patrick to fill a vacancy. He was elected in his own right when he defeated Bennett in 2014. In any event, it was none of Tompkins’s business if Bennett’s signs were misleading.
“Under these circumstances, the requests made by Sheriff Tompkins were an inherently coercive use of his official position to aid his candidacy, and therefore were prohibited by the conflict of interest law,” Ethics Commission executive director Karen Nober said in a statement.
Tompkins told the Boston Globe: “If that’s the rules, that’s the rules,” he said. “I’ve learned from the experience, and I’ve moved on.... It won’t happen again.”
In March 2014, Mary Celeste Holmes said she came upon a disturbing scene. An MBTA Police officer, Jane Amyot-Garvey, was screaming at and shoving a woman at the Dudley Square T station while her partner, Officer Alfred Trinh, stood by.
Holmes said she tried to stop Garvey from abusing the woman and called 911 to report what she was seeing. For her troubles, she claims, she was accosted by both Amyot-Garvey and Trinh, pepper-sprayed, knocked down, and charged with assault and battery on a public employee as well as disorderly conduct.
Although the case has not yet been fully adjudicated, the facts so far support Holmes. The charges against her were dropped. Amyot-Garvey is no longer with the police force, and she faces a criminal investigation of her actions that day, the Boston Globe reported. And so in April of this year her attorneys amended a federal civil-rights suit they had already filed against the two officers to add the MBTA as a defendant.
“The MBTA has allowed policies or customs to develop within its police department that have caused MBTA police officers to believe they can violate the Constitution with impunity,” the lawyers wrote. “These policies or customs were the moving force behind the misconduct that resulted in the violation of Ms. Holmes’s constitutional rights.”
In a statement, Carl Williams, a staff attorney with the ACLU of Massachusetts, which is assisting with Holmes’s case, said that the T was being sued “in hopes of ensuring that no one needs to endure what she did—abuse at the hands of the very officers who have the duty to protect people.”
Equally important, the abuse Holmes said she suffered was the result of her attempting to exercise her free-speech rights to object to the officers’ behavior.
It’s sometimes said that the definition of insanity is doing the same thing over and over in the expectation that, this time, you’re going to get a different result.
Municipal officials everywhere should have been on notice when, in February 2014, a federal judge ruled that an anti-panhandling ordinance in Portland, Maine, was an unconstitutional abridgement of free speech. We bestowed a 2014 Muzzle Award upon the Portland City Council for its misbegotten efforts.
The city appealed—and lost. After the US Court of Appeals for the First Circuit upheld the lower-court ruling last September, the city council finally decided to stop the silliness, according to the Portland Press Herald.
Meanwhile, city officials in Worcester and Lowell approved similar bans, which, predictably, led to double trouble in the federal courts in the form of successful lawsuits filed by the ACLU of Massachusetts Last October, a federal judge vacated Lowell’s ordinance, which prohibited panhandling in the 400-acre downtown historic district as well as “aggressive” panhandling. A month later, a similar ordinance was overturned in Worcester.
No one likes to be approached by aggressive panhandlers. And it’s true that they pose a risk to themselves and to others when they venture off into traffic. But those are not sufficient reasons to ban speech that is protected by the First Amendment.
In a press release announcing the Lowell victory, the ACLU cites a column in the Guardian that is worth pondering. “It is now clearly established that the first amendment protects people who express themselves by spending millions of dollars,” Matthew Segal writes. “How can it fail to protect people who express themselves by asking for one dollar?”
For four years, Philip Eil, a freelance journalist based in Rhode Island, has been fighting to obtain public records from the federal Drug Enforcement Administration stemming from the conviction of an Oxycodone dealer serving four life sentences.
Eil, who was the news editor of the now-defunct Providence Phoenix, is writing a book about the case. Dr. Paul Volkman, who’s been dubbed the “Pill Mill Killer,” attended college and medical school with Eil’s father. Volkman was convicted in federal court in Cincinnati in 2011. Last November Eil wrote for my website, Media Nation, about his long, fruitless effort to obtain the evidence in the case through the Freedom of Information Act.
Weirdly, the government has released many (though by no means all) of the documents it is refusing to provide to Eil by publishing them on a publicly accessible website as it fights Volkman’s appeal.
It is hard to imagine a more important role for the press (and the public) than scrutinizing the actions of the criminal-justice system, especially with regard to someone who is serving a lengthy prison sentence. Denying the public full access to the evidence used to convict Volkman is an outrageous breech of the First Amendment.
“These are not top-secret documents,” Eil wrote. “This is evidence that sent a man to prison. This is evidence from a case that traveled all the way to the US Supreme Court. This is evidence that was presented in every US citizen’s name, since we were all plaintiffs in ‘the United States of America vs. Paul Volkman.’ Welcome to the ‘most transparent administration in history.’”
Earlier this year the ACLU of Rhode Island joined Eil’s legal battle to get the documents released. A resolution has not yet been reached. The state ACLU’s executive director, Steven Brown, said in a statement: “The agency’s siege mentality in trying to wear out Mr. Eil through years of delays amounts to an appalling attack on the public’s right to know.”