The 16th annual New England Muzzle Awards
On July 4, 2013 January 12, 2019 By Dan KennedyIn Civil liberties, First Amendment, Free speech
Previously published by WGBHNews.org, the Providence Phoenix and the Portland Phoenix.
For anyone who's been paying attention, President Barack Obama's disappointing record on free speech, civil liberties, and governmental transparency is old news.
This year, though, is special. Obama's longstanding lack of respect for the role of a free press in a democratic society reached new depths when it was revealed that his Justice Department had snooped on the Associated Press and Fox News' James Rosen in trying to ferret out leakers.
Then came the überleaker — Edward Snowden, who provided The Guardian and The Washington Post with documents showing that the National Security Agency was monitoring our phone traffic, our emails, and other communications on a scale more massive than previously imagined.
"I welcome this debate and I think it's healthy for our democracy," Obama said after the NSA revelations. Yet his administration has already begun the process of bringing criminal charges against Snowden that could put him behind bars for decades.
It is against that chilling backdrop that Harvey Silverglate and I present the 16th Annual Muzzle Awards — a Fourth of July round-up of outrages against free speech and personal liberties in New England during the past year.
Launched in 1998, the Muzzles' home was the late, great Boston Phoenix, which ceased publication in March. This year we are pleased to bring the Muzzles to WGBH.org, and to continue publishing them for readers of The Providence Phoenix and The Portland Phoenix.
The envelopes, please.
US Attorney Carmen Ortiz: Prosecuting — and persecuting — a fragile Internet visionary
Last January, Aaron Swartz, a 26-year-old computer prodigy and an activist for open information, hanged himself in his New York City apartment. Swartz suffered from depression and was reportedly despondent over a criminal case that Carmen Ortiz had brought against him for downloading millions of academic articles at MIT without authorization.
Swartz, who co-founded Reddit and helped develop the RSS standard, had done nothing with the articles. JSTOR, the company whose servers he had targeted, declined to press charges. But Ortiz pursued him zealously, putting out a public statement threatening him with 35 years in prison. After his death, she let it be known that he faced "only" six months behind bars if he'd pled guilty.
Ortiz may have decided to make an example of Swartz because of his outspokenness about oppressive copyright enforcement and related issues, which his MIT stunt was meant to illustrate. It wouldn't be the first time she had demonstrated her contempt for free speech. Last year Ortiz received a Muzzle for her successful prosecution of Tarek Mehanna, a vile propagandist for Al Qaeda whose activities should nevertheless have been protected by the First Amendment.
Yet even after his death Swartz succeeded in advancing the cause of openness. In May, The New Yorker unveiled Strongbox, software that would allow whistleblowers to deposit leaked documents without being traced. Bradley Manning might never have gotten caught if it had been available to him, nor Edward Snowden if he'd chosen to use it.
The developer was Aaron Swartz.
Boston Police Commissioner Ed Davis: Strong in a crisis, but he also spied on antiwar and Occupy left
Ed Davis and other law-enforcement officials have been justly praised for their handling of the Boston Marathon bombing and its aftermath. Though the voluntary "shelter in place" order may have been excessive, a chaotic, frightening chain of events was handled with competence and courage.
The problem is that, in non-emergency situations, the authorities have a habit of demonstrating a grotesquely misplaced sense of priorities. Such was the case last October, when the ACLU of Massachusetts and the state chapter of the National Lawyers Guild unearthed documents showing that the Boston Police Department had been spying on antiwar and Occupy protesters. Among the BPD's targets: the late Howard Zinn, an elderly Boston University professor and World War II hero. According to a report by Jamaica Plain Gazette editor John Ruch, also targeted was a 2007 antiwar rally featuring activist Cindy Sheehan, then-city councilor Felix Arroyo Sr., and Carlos Arrendondo, who memorably came to the aid of a badly injured spectator, Jeff Bauman, at the marathon bombing.
The police shared that information with the Boston Regional Intelligence Center (BRIC), the so-called fusion center comprising federal and state authorities that was supposed to be tracking terrorist threats — yet apparently never received information provided by Russian intelligence about Tamerlan Tsarnaev. Michael Isikoff of NBC News (here) and Chris Faraone, writing for DigBoston (here), offer worthwhile analysis.
Let's hope that Davis, who also won a Muzzle in 2010, now realizes he was looking in the wrong places all along — and violating the civil liberties of patriotic Americans.
Max Kennedy: Still stonewalling after all these years on RFK's official papers
It was bad enough that the Kennedy family had refused to release what were described as the private papers of the late Robert Kennedy. But then, last August, Boston Globe reporter Bryan Bender revealed that many of the papers were actually official documents from RFK's time as attorney general, including some that may have pertained to assassination attempts against Cuban president Fidel Castro.
Yet the papers have still not been released. And thus RFK's son Max Kennedy, who has acted as the family's spokesman, earns his second Muzzle for stonewalling on the RFK papers (the first came in 2011).
According to an index obtained by Bender, the 62 boxes of files may contain crucial insights into such matters as the Kennedy administration's anti-Castro activities, the Cuban missile crisis, and the Vietnam War. Max Kennedy said the family hoped to release all the papers. But one of the hold-ups, according to the Globe, was the family's desire to get a tax deduction for the papers before turning them over to the public domain.
As a Globe editorial put it, the Kennedy family "never should have been granted control over official documents in the first place. And they certainly shouldn't feel entitled to a tax deduction for them."
It's time to see what's in those files.
Governor Paul LePage: Maine's pro-gun governor tramples on the public's right to know
Editors at the Bangor Daily News must have known their request for public documents about concealed-gun permits last February would be controversial. After all, The Journal News of White Plains, NY, had already set off a firestorm by publishing an interactive map of gun owners on its website.
But the reaction to the BDN was so intense that it called into question the very nature of "public" records. State legislators, especially Republicans, denounced the newspaper. A "Boycott Bangor Daily News Dont [sic] Tread on Us" page popped up on Facebook.
And our Muzzle winner, Governor Paul LePage, demagogued the issue, posing for a photo in which he's seen holding up his own concealed-gun permit. He also called on the state legislature to the remove the data from the public realm as quickly as possible. (The legislation was passed and signed in April, according to the New England First Amendment Coalition.)
"If newspapers would like to know who has concealed weapons permits, then they should know the governor has his," LePage was quoted as saying. "I have serious concerns that BDN's request will incite fear among gun owners and nongun owners alike regarding their safety."
It was all too much for the newspaper, which ended up withdrawing its request — even though, in an "Editor's Note," the paper said it "never would have published personally identifying information of any permit holder."
This is LePage's third Muzzle, with his previous awards coming in 2011 and 2012. His earlier antics leaned toward the buffoonish. This time, he acted as a thug, leading an unruly mob to trample on the public's right to know.
Former New Hampshire House Speaker William O'Brien: Playing unfavorites with the press
William O'Brien is not one to brook much in the way of back talk. When a protest broke out in the House gallery during a budget hearing in the spring of 2011, he ordered state police to kick everyone out.
A year later, a fellow Republican legislator became so upset with what he saw as O'Brien's attempts to silence him that he directed a toxic remark at the Speaker: "Seig Heil." The legislator was ejected from the chamber and forced to apologize.
It was the Hitler reference that led to O'Brien's Muzzle. Because Mike Marland, a cartoonist for the Concord Monitor, followed up by depicting O'Brien with a Hitler-like mustache, accompanied by the caption "If the mustache fits …"
O'Brien got his revenge. Last July, he scheduled a news conference to be held in his Statehouse office — and banned two Monitor journalists who tried to enter. An O'Brien spokeswoman explained: "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." (Tony Schinella of Concord Patch shot video of the journalists being held at bay, and of O'Brien responding noncommittally when asked about it.)
Trouble is, though public officials are under no obligation to give journalists special treatment by (for instance) granting interviews, under the First Amendment they must give them equal treatment when holding official events such as a news conference on public property.
O'Brien, no longer Speaker after voters returned Democrats to the majority in the last election, is now running for Congress.
Rhode Island Public Schools: ACLU filtering study reveals widespread Internet censorship
Over the past two decades, the Internet has become a crucial tool in public education, opening schoolchildren to the broader world. Yet concerns about sex, violence, and other inappropriate content has led many school districts to impose draconian restrictions limiting kids' access to even the most innocuous material.
The ACLU of Rhode Island set out to document online censorship in the schools — and what it found should chill all of us. It turns out that filtering software used in the Rhode Island Public Schools has blocked students from accessing websites such as PBS Kids, National Stop Bullying Day, a video clip of The Nutcracker, and information about global warming. Also blocked were educational resources for gay and lesbian teens.
There is no reason to believe that Internet censorship is worse in Rhode Island than it is in other states. Under the federal Children's Internet Protection Act, all schools and libraries that receive federal funding must filter "obscene" content, child pornography, and material that's considered "harmful to minors" — the last being a dangerously fuzzy standard. The ACLU study, by policy associate Hillary Davis, documents problems in Rhode Island but includes findings and recommendations that should be applied nationally.
"In trying to prevent students from visiting 'inappropriate' websites, school officials have instead taken advantage of technology to implement an unjustifiable scheme of censorship," according to Davis's report. "This must change, for it is only through the free exchange of ideas that students can truly experience a full education."
Plainridge Racecourse: A citizen journalist fights off a lawsuit aimed at silencing him
Last September the owners of the Plainridge Racecourse in Plainville, MA, SLAPP'd Thomas "T.J." Keen hard. In the end, he slapped them back harder.
Keen, a Plainville resident and gambling opponent, set up a website called No Plainville Racino to fight a proposed slots license at the track. As Boston Globe columnist Yvonne Abraham described it, Keen's troubles began after someone broke into his home and he gave a webcam image to the Plainville Police. The picture made its way onto a related Facebook page that another gambling opponent had started. An anonymous commenter wrote, "I wonder if they checked over at the racetrack, lol."
Ourway Realty, which owns the track, sued Keen for defamation on the basis of that anonymous comment. Keen countersued, arguing that Ourway's legal action had been filed for the sole purpose of stifling public debate and thus violated the state's anti-SLAPP law. (SLAPP stands for "strategic lawsuit against public participation.")
In the end, Keen — and the right of citizens to speak out — prevailed. Judge Patrick Brady of Norfolk Superior Court tossed aside the suit and awarded Keen nearly $25,000 to cover his legal costs, according to The Sun Chronicle of Attleboro.
"I'm happy that the court has affirmed affected citizens' right to petition and make their voice heard in these community-changing debates," Keen said in a statement released by the ACLU of Massachusetts, which helped represent him. "Residents should not be intimidated or bullied by deep-pocketed firms looking to quash their dissenting voice."
Maine Department of Transportation: Keeping records about a controversial highway from the public view
A private developer has proposed a $2 billion, 220-mile highway connecting Calais to the east and Coburn Gore to the west — and all documents pertaining to the project are under seal. That's because of a 2010 exemption to Maine's right-to-know law that, as the Portland Press-Herald editorialized, "you could drive a truck through."
Under the exemption, records about the proposed "east-west highway" will remain secret until the Maine Department of Transportation (DOT) decides whether to move ahead. This lack of accountability is an outrageous breach of the public trust. By rights, the officials responsible for writing and passing the 2010 exemption deserve the Muzzle. We'll award it to the DOT as their proxy.
Fortunately, advocates of open government succeeded in undoing the worst of the 2010 exemption. On June 5, Governor Paul LePage signed legislation that maintains the legitimate need to protect confidential business information and trade secrets while subjecting most aspects of such partnerships to public scrutiny.
"Decisions about whom the government enters into partnership with and how officials spend our taxpayer money are certainly matters of public importance," wrote Rachel Healy, communications director for the ACLU of Maine, in a commentary for the New England First Amendment Center.
The east-west highway is a controversial idea. According to the Associated Press, business owners this spring told the legislature's transportation committee that the highway would cause them significant harm. They — and everyone in Maine — deserve to be treated with respect. A transparent process will provide that.
Rhode Island prison chief A.T. Wall: Prisoners have free-speech rights, too
Does a prison inmate forfeit his First Amendment rights? Yes, to an extent. But as US Magistrate Lincoln Almond patiently explained last September, an inmate who criticizes a prison policy that is applicable to other inmates and who provides them with relevant information — unlike a "personal matter of purely individual interest" — may indeed be engaging in protected speech.
Almond was aiming his words at the Rhode Island Department of Corrections (DOC), whose director, Ashbel T. "A.T." Wall II, was fighting a lawsuit brought by Jason Cook, an inmate at the Adult Correctional Institute in Cranston. Cook claimed that after he complained to The Providence Journal in 2007 about a new policy that restricted reading materials an inmate could receive (which itself raised First Amendment issues and was later rescinded), prison authorities retaliated by taking away his kitchen job, trashing his cell, holding him in segregation, and subjecting him to strip-searches. The resolution of Cook's lawsuit is still pending.
In defending itself against Cook's lawsuit, the DOC argued, among other things, that Cook had no First Amendment right to speak to the Journal, thus prompting Almond's finding. The DOC appealed. In February, US District Judge William Smith upheld most of Almond's recommendations, including his finding that Cook did indeed enjoy some First Amendment protections.
"The DOC's position that inmates could be disciplined simply for bringing prison conditions and policies to the public's attention was extremely troubling," said Steven Brown, executive director of the Rhode Island ACLU.
Convicted criminals, understandably, give up many of their rights when they are sentenced to prison. But it doesn't and shouldn't put them beyond the protection of the Constitution. A.T. Wall may not like it — but at least now he presumably understands it.
Massachusetts Superior Court Judge Peter Lauriat: Twitter emerges as a vital news tool — but not in this courtroom
The courts remain our least open institution. Twitter has helped change that, as reporters are able to send updates throughout the day from inside the courtroom. For instance, a phalanx of media is now live-tweeting every moment of the Whitey Bulger trial.
Then there is Judge Peter Lauriat, who last winter presided over the case of Nathaniel Fujita, convicted in March of murdering his girlfriend. Lauriat had no problem with television cameras or even live-blogging — but he drew the line at Twitter.
According to Robert Ambrogi, a lawyer who is also executive director of the Massachusetts Newspaper Publishers Association, Lauriat initially banned Twitter from anywhere inside the Middlesex Superior Courthouse in Woburn. He later backed off and allowed tweeting from a separate media room, but not from the courtroom itself.
"The ban on tweeting drew the unavoidable question: What's the difference?" asked Ambrogi. The answer is unclear.
David Riley wrote at the Wicked Local Blog that Lauriat was concerned that jurors were more likely to run across a tweet by accident than another form of media.
Jeff Hermes, director of the Digital Media Law Project, reported that Lauriat expressed doubts about the quality of journalism when reduced to 140-character updates, and about his inability to prevent attendees who had not registered as journalists from firing up Tweetbot on their smartphones.
None of these were good enough reasons to ban what has become a vital news medium. Lauriat acted as he did because he could. He shouldn't have had that option.
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