Concord lawyer honored for fighting for free press

I was honored to attend last night's Nackey Loeb Dinner in Manchester to benefit the Nackey S. Loeb School of Communications. The Union Leader reports on this year's honoree for his work in opening up government records to the public.

Concord attorney William Chapman said winning the Nackey S. Loeb First Amendment Award is like getting an award for skiing. Fighting for a free press and open access to the government isn't work, he said, it's fun.

Chapman, of the Concord law firm of Orr and Reno, was honored last night at the seventh annual Loeb First Amendment Award Honors dinner at the Radisson Hotel for his 37 years of work in media law.

Chapman is considered a top authority on New Hampshire's freedom of public access and media law and has argued dozens of cases involving access to records and government proceedings on behalf of New Hampshire media outlets. Chapman also helped set the standard for protecting reporters' sources in criminal cases and public access to court and government records.

Our work on the Josiah Bartlett Center often relies on getting access to public records from state officials, who are sometimes cooperative and sometimes not. As the distinction between free speech and free press continues to diminish in importance, we are happy to salute Mr. Chapman for his life's work.

Robert Foster, the recently deceased publisher of Foster's Daily Democrat, received the annual Quill & Ink Award for his years of work putting out one of New Hampshire's finest newspapers. His contributions to journalism are noted, and will be missed.

Freedom of Speech in the Internet Age- Part II

Over at Blue Hampshire, JimC is upset at the radio host Howie Carr is trying to find out the identity of an anonymous critic, and has offered a $2,000 reward.

Like I said on BMG, this is a classless move, and I think it's a freedom of the press issue.

Some background: the state GOP sued over the Senate appointment law. A judge quickly ruled against them, and Howie Carr (recently described by Dan Kennedy as the Bill O'Reilly of Boston media) wrote a column attacking the judge.

"Ernie Boch III" wrote a blog post calling for a boycott of Carr's advertisers. (It was atypical of him; EBIII is usually snarky.) Yesterday morning, the lead story in the Herald was Carr's column attacking EBIII for "posing" as someone else. And yesterday afternoon, on Carr's radio show, Boch offered the reward.

The pose rhetoric is an absurd charge. There is no Ernie Boch III to pose as; it is a joke as recognizable as the Sons of Sam Horn, a Red Sox blog.

I suspect that Howie Carr and Ernie Boch Jr. think this is all a big joke, but $2,000 is enough to draw a crazy person, and this is sponsored press harassment.

JimC and I had a little colloquy about anonymity and the Internet back in August, but that case involved a court order in a possible defamation case.

There is no First Amendment issue here, because there is no government involvement. Whether this case is an attack of press freedom apart from the First Amendment is a separate question, but I still don't think it rises to a threat on journalism.

Ernie Boch III has every right to withhold his identity. However, he can't force others to not care who he is, or take steps to find out. JimC seems to think that the act of criticism itself shields the anonymous blogger from counter-criticism, or from his targets wanting to know more about who's attacking them.

I've never seen any real distinction between freedom of speech and freedom of the press. I'm happy to give Ernie Boch III the same rights as the New York Times. Okay, bad example. Make that the same rights as a trusted journalist. Discovering the identity of anonymous bloggers may be considered bad form in the blogosphere, but it's certainly not a threat to free speech. They have a right to shout from behind the curtain, and I have a right to peak behind the curtain. Why should my rights yield to the anonymous blogger? Privacy? Certainly not. You can't walk through a public park and then forbid everyone else from looking at you.

I respect the right of people to withhold their identity when they post their opinions online. But I discount what they say somewhat because of it. If I don't know where they are coming from, and what biases and allegiances they bring to the table, I trust them less. I've chosen to put my name under all of my online activities, whether it be here, at Red Hampshire, Facebook, or rarely in the comment threads of other blogs. My history and biases are there for Google and all the world to see, and I think it makes my words more credible. But that's my choice.

The source of the $2,000 reward is the anonymous blogger's use of another man's name. Ernie Boch Jr. doesn't like that someone is his name to push ideas he disagrees with. He's got every right to be upset. It's a slimy thing to do, but certainly not illegal. If Boch or Carr were going to court to make the blogger's identity public or make him change his nom-de-blog, I'd side with JimC on this.

Ironically, this issue started when Ernie Boch III called for a boycott of Carr's advertisers because he doesn't like what Carr is saying. By JimC's logic, this is a greater threat to press freedom than Carr's $2,000 reward. Of course, it's not. As always, the cure for bad speech is more speech.

Writing in the Wall Street Journal, Ted Olsen stands up for the First Amendment, even when the political elites find it annoying.

Is outlawing political speech based on the identity of the speaker compatible with the First Amendment? Tomorrow, the Supreme Court will hear arguments to determine the answer to this question.

The case—Citizens United v. Federal Election Commission—involves a 90-minute documentary produced by Citizens United, a small nonprofit advocacy corporation. "Hillary: The Movie" examines the record, policies and character of the former New York senator, now Secretary of State, Hillary Rodham Clinton. The documentary was set to be broadcast during Mrs. Clinton's presidential primary campaign. But the broadcast was banned when the Federal Election Commission declared that the broadcast would violate the 2002 McCain-Feingold campaign finance law.

McCain-Feingold, and every supposed reform and restriction of political speech, is little more than an incumbent protection plan, designed to make campaign resources scarce for those who would challenge those already in power. Congress should have the courage to repeal it. The Supreme Court should have the wisdom to strike it down.

Freedom of Speech in the Internet Age

Interesting post over at BlueHampshire regarding a defamation case involving a Vogue cover model, Google, and a sharp-tounged blogger. Here's the original story at Media Bistro.

Under court order, Google has just handed over the IP address of the user of Blogger (a Google service) who had posted some very unkind things about Vogue cover model Liskula Cohen on a blog called "Skanks in NYC," including photo captions referring to her as the "Skankiest in NYC" and a "psychotic, lying, whoring ... skank."

Cohen had asked Google for the information, so she could sue the author for defamation. Google had refused, citing the company's privacy policy (though it did take down the blog). Cohen's attorney's brought the matter to court. On Monday, a New York Supreme Court justice batted down the anonymous blogger's contention that the bons mot were mere opinion and instead, according to the Guardian (UK), "found Cohen may insist in a suit that the statements are factually inaccurate." (more)

BlueHampshire poster JimC paints the story as an attack on press freedom and slams Google for turning over the blogger's information, rather than appealing the court order. Google initially fought the disclosure, citing its privacy policy. The real issue here is the New York Supreme Court's decision that calling someone names in not a matter of opinion, but a fact that can be refuted in court. How would one go about proving one is not a "skank"?

In fact, Cohen hasn't even filed a libel or defamation suit yet. So what grounds does she have to force this disclosure? I've been called plenty of names in the past, often by anonymous web posters. I never thought of going to court.

A frontal assault on the First Amendment

The Supreme Court's horrendous decision in the Kelo case, which upheld the abuse of eminent domain to boost local property tax revenues, has now spawned a full frontal assault on the First Amendment, as a Texas developer is trying to block publication of a book critical of his efforts to seize someone else's property. George Will tells us about a case that should be bounced out of court as soon as possible.

The book arises from an abuse of the power of eminent domain by the city of Freeport, Tex., but the story really begins in Connecticut. There, in 2000, New London's city government condemned the property of middle-class homeowners in an unblighted neighborhood for the purpose of getting the property into the hands of commercial interests that would pay more taxes. In 2005, in Kelo v. City of New London, the U.S. Supreme Court upheld, 5 to 4, New London's rapaciousness as a constitutional taking of property for what the Fifth Amendment calls a "public use." Rapacious people around the country salivated.

When Kelo was decided, H. Walker Royall, a Dallas developer, already had designs on some property that for more than a decade has belonged to the Gore family shrimping business in coastal Freeport. In 2003, Royall signed an agreement with that city's government to build a yacht marina, hotel and condominiums using property the city would seize by eminent domain.

The Bill of Rights: More than one at a time

Note to Chris Matthews. The First Amendment and the Second Amendment are not mutually exclusive. The rights guaranteed under them may be exercised at the same time.

Visit msnbc.com for Breaking News, World News, and News about the Economy

White House "Flag" program more than creepy; may be illegal

Earlier this week, the White House Director of New Media asks for President Obama's supporters to send in anything they thought was "fishy" in the health care debate. Asking fellow citizens to start reporting each other to the government is somewhere between slightly disturbing to really, really creepy. I'm leaning towards creepy. But some folks with more legal expertise than me think such a program is actually illegal:

Evan Coyne Maloney

It turns out, even asking for citizens to report on each other may be illegal. According to the Department of Justice, “the purpose of the Privacy Act is to balance the government’s need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy stemming from federal agencies’ collection, maintenance, use, and disclosure of personal information about them.”

Further, anything is considered a “personal record” if it identifies an individual (an e-mail address would qualify), and “federal agency” specifically includes “the Executive Office of the President.”

David Hardy

As a recovering bureaucrat, I can point to a much, much, bigger illegality under that Act.

5 US Code §552a(e)(7) commands that any Federal agency

"(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;"

Persons posting to the web or sending emails are exercising First Amendment rights. I can't see how gathering this information is expressly authorized by statute, nor within the scope of an LE activity. It doesn't get much clearer than that.

White House Press Corps pushing back

The White House Press Corps is starting to push back against the pre-packaged, pre-determined nature of the Obama Communications Team:

Free speech, free press, and human rights

Right Blogistan is extremely upset that ABC has basically turned itself into a wholly-owned subsidiary of the Obama Message Machine.

Dan Riehl imagines a world in which ABC would treat a Republican President the same way:

Hey, I know. Let's give the Bush White House a few hours on ABC to make a complete presentation from policy advisers and military personnel to go through the run up, execution and corrections regarding the Iraq War. And explain why bringing modernity to the Middle-east actually is a part of the war against terrorism. The media always likes to get behind a war effort, anyway. Oops, sorry, too late for that. Bet they wish they had thought of it then.

Not likely. Disney already owns Fantasyland.

At NRO, Dana Perino has praise for ABC News, but not for this decision:

Perhaps ABC will help provide more clarity and “select” people who will ask tough questions; however, no matter how tough the questions are, President Obama will have home-field advantage. And it’s hard not to look like you’re in the tank when you’re anchoring from the Blue Room.

I understand what all the fuss is about. We're used to the mainstream media pretending to be objective. They never have been, of course. Nor should they be. The First Amendment was written long before the Columbia School of Journalism came around to promote the Myth of the Monastic Reporter. Under this fantasy, reporters and editors exist above the political fray, dispensing dispassionate truth from their lofty and ethical perch. While the romantic view makes reporters seem so much better than common folk, or at least the politicians they cover, it isn't true. Reporters are just as fair and as biased, just as hard-working and as lazy, just as ethical and as sleazy, as the rest of us. We can't expect them to ignore who they are and what they believe as they report the news.

Nor should we. The First Amendment isn't premised on an artificially objective press corps providing fair and balanced coverage. It relies on a cacophony of voices fighting for time and attention with the strength of their ideas. Sure, ABC News lacks any credibility when it comes to covering the Obama Health Care Takeover, but they didn't lose it yesterday. They lost it last summer, and Hillary Clinton supporters might say sooner than that.

Which is fine, as long as ABC isn't given monopoly protection along with its Mainstream Media cohorts. The Obama Administration has shown a remarkable ability to close itself off from criticism, and only allow access to Washington Press Corps Softball Team. And if his ideas are so weak that they can't withstand criticism, they should be rejected.

But ABC News confirming what we already knew about their agenda doesn't weaken the press in America. We could be living under an oppressive regime that stifles all criticism, and uses the power of the state to prosecute people who express unpopular ideas. We could live in Canada:

Who will mourn for the beleaguered Canadian censors? Jennifer Lynch, the Chief Commissioner of the Canadian Human Rights Commission, is oddly insecure in the face of criticism. In Canada's popular Globe & Mail newspaper, Lynch defends her Commission's mandate to punish Internet speech that could "expose an individual or a group of individuals to hatred or contempt" and responds to critics.

From Lynch's article, we learn that "Section 13 prohibits the repeated electronic transmission of messages that are likely to expose an individual or a group of individuals to hatred or contempt." Please allow me to express my contempt for Jennifer Lynch and her repeated attacks on free expression in the land of my ancestors. I hope to escape prosecution the next time I visit Montreal or Toronto.

We've mentioned Canada's quest to stamp out free speech before. But at least we'll never see anything like that in New Hampshire.

The House has already approved a bill to weaken due process protections if you're ever brought before the Commission on Human Rights. Under current law, either party could remove a dispute from this quasi-judicial body to Superior Court. If this legislation passes, defendants wouldn't get their day in court until after the Human Rights Commission is through with them. This would change the Commission from providing voluntary mediation and arbitration into a one-sided prosecutorial weapon, under which anyone accused of discrimination would have to clear his or her name twice.

Fortunately, the New Hampshire Commission on Human Rights has limited itself to cases of illegal discrimination in employment and housing, and has not become a Star Chamber for politically motivated prosecutions. If it did, this is a much more significant threat to free expression than ABC News turning the keys to the Newsroom over to the Obama White House.

For a great example of free speech in action, just look at the Letterman-Palin Kerfuffle.

The First Amendment Doesn't Apply

Canada is continuing along its path to Orwellian "Truth". This week, the government's "official censor tries to censor TV debate about censorship." Ezra Klein recounts his first-hand experience:

This evening, Jennifer Lynch, the chief commissar of the Canadian Human Rights Commission, tried to have CTV Newsnet kick me off their interview program Power Play, hosted by Tom Clark.

To their great credit, CTV refused to be bullied -- and it was Lynch who wound up off the show.

Canada has never fully embraced our commitment to free speech, but the government's efforts to censor critics and prosecute dissent a hate crimes has picked up recently. It's nice to see Canadian citizens pushing back.

Honestly, how can they ignore the First Amendment like this? It's like they're a whole 'nother country up there.

The First Amendment in Action

Foster's editorial page demonstrates the proper response to offensive and disgusting speech: more speech:

The Constitution gives Mr. Johnson the privilege of flying the Nazi swastika, the former Soviet Union's flag — even the flag of North Korea, if he so chooses. It comes under free speech.

He says his action isn't intended as an insult to American troops, but rather is something being done to irk a neighbor.

What Mr. Johnson intended is irrelevant. The flag under which the Nazis marched across Europe massacring millions of people is a symbol of evil despised by people of good sense and good conscience everywhere.

Mr. Johnson trivializes the evil for which the flag of Nazi Germany stood.

Hitler has been buried. Let his flag burn in hell with him.