The high cost of Cambridge police records

The Cambridge Police Department has adopted a restrictive policy that would force the Cambridge Chronicle to pay more than $1,200 to obtain public records of police activity for most of July, according to a story by Chronicle reporter Erin Smith. What's more, the policy may be in violation of the Massachusetts public-records law.

Like all Massachusetts police departments, Cambridge's makes a bare-bones incident log freely available to members of the public; it is, in fact, online. But state law exempts police departments from having to release detailed information about incidents that are under investigation.

What is and isn't public information, and when it must be made public, are complicated matters that I'm not going to get into here. But the law does require that the public log — also known as the police blotter — contain the "names and addresses of persons arrested and charges against such persons."

According to the Chronicle, though:

The Cambridge Police Department already keeps a daily police log online maintained by a student intern, but over the past several months, the Chronicle noticed that previously available information — such as the ages and addresses of arrested people, the addresses where crimes occurred and the description of suspects — was being withheld from the public.

In quickly scanning through a few days' worth of the Cambridge log, I found several examples of arrestees whose addresses (and ages) were listed. I couldn't find any whose address was not listed. I have no reason to doubt the Chronicle's reporting, but it's important to point that out.

The fees are another matter. Charging $1,215 for public records is an outrageous breach of the public's right to know. The police department's lawyer, Kelly Downes, cites the cost of compiling and copying those records. But the standard practice with many police departments is to allow reporters to view the originals at the police station, at no cost to anyone.

Given the embarrassment over the department's recent arrest of Harvard scholar Henry Louis Gates in his own home, you'd think that everyone would be on his or her best behavior these days. Well, think again.

And by the way — we're still waiting to hear how Sgt. James Crowley, who arrested Gates, managed to incorporate information into his report from a woman who insists she never talked with Crowley. Maybe Downes hasn't had a chance to work out a price for that particular piece of information.

Media should keep pushing on Crowley

Even many of us who think the Cambridge Police overreacted by arresting Henry Louis Gates in his own home have assumed — for the sake of argument if nothing else — that Sgt. James Crowley's report was accurate.

I've contended from the beginning that Crowley's mistake was in failing to recognize why Gates would think he'd been racially profiled. Friend of Media Nation Harvey Silverglate and Slate columnist Christopher Hitchens have both written that the issue wasn't race, but Gates' constitutional right to throw a nutty in his own home. I agree.

But with Crowley, Gates and President Obama settling in for an awkward beer later today, let's not forget that there is an enormous discrepancy between Crowley's report and the statements of Lucia Whalen, the woman who called 911 and then waited at the scene until police had arrived.

Using very specific, descriptive language, Crowley wrote that Whalen told him she'd seen "two black males with backpacks on the porch." And when the Boston Herald pointed out the discrepancy to Crowley, he replied, "Obviously, I stand behind everything that's in the police report. It wouldn't be in there if it wasn't true."

Yet Whalen, at first through her lawyer, Wendy Murphy, and yesterday in her own appearance before the media (Boston Globe story here; Herald story here; Cambridge Chronicle story here), has insisted that she and Crowley never spoke.

The media need to keep pushing. If Crowley's report turns out to be wrong in some fundamental way, then it calls everything else into question as well.

Creative Commons photo (cc) via Wikimedia.

An update on Kazakhstan's Internet crackdown

The partly free republic of Kazakhstan has taken a step toward greater repression, as President Nursultan Nazarbayev (photo) recently signed a bill aimed at cracking down on the Internet.

According to David Stern, writing for GlobalPost, the new law subjects all Internet communications to Kazakhstan's "already punitive mass media and libel laws." The law will also make it easier for the Kazakh government to block foreign Web sites.

The bill was the subject of a protest last April during the Eurasian Media Forum, held in the country's largest city, Almaty. I was at the forum and covered the story here and here. At the time, people like Almaty resident Adil Nurmakov, Central Asia editor for Global Voices Online, were hopeful that Nurmakov might veto the legislation.

Unfortunately, that was not to be. As Stern's story makes clear, the authorities have decided not to risk any sort of Twitter revolution spreading to Kazakhstan.

Kazakhstan is an important country — a vast, lightly populated former Soviet republic with considerable oil and gas resources. It's a shame that Nazarbayev's interest in opening up to the West does not extend to greater liberties for his own people.

Fighting censorship at his old school paper

A summer intern at the Cape Cod Times named Henry Rome was such an outstanding journalist at his high-school paper in Pennsylvania that he was named the National High School Journalist of the Year.

Now, before he heads off to Princeton University this fall, he's fighting a proposal that could result in his old paper being censored by school officials before publication.

George Brennan reports.

A new threat to the Internet

In my latest for the Guardian, I consider the implications of an idea put forth recently by influential U.S. Court of Appeals Judge Richard Posner: making it illegal to link to copyrighted content without permission. Not only would Posner's proposal do enormous damage to the Internet, but it would destroy the doctrine of "fair use" as well.

Torturing the language

Civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in the Guardian why the Washington Post is wrong to claim that it can't use the word "torture" because of libel concerns.

Some background on Rhode Island's A.G.

Hey, Joe Dwinell: You should see what people talk about on the phone. Sex, drugs — all manner of illegal activity. Maybe it's time we brought Verizon to heel, eh?

My friend and former employer Stephen Mindich, publisher of the Phoenix newspapers, is doing a perfectly fine job of defending himself. I just thought I'd point out that Rhode Island attorney general Patrick Lynch, who wants to crack down on adult advertising on Craigslist and in the Phoenix following a recent murder linked to a Craigslist ad, was the proud recipient of a 2004 Phoenix Muzzle Award.

In brief, here's what happened: a man died in the custody of the North Kingstown police. Local officials refused to release public records pertaining to the case. And Lynch, whose duties include enforcing the state's open-records law, not only refused to order the release of those records, but coached local authorities on how to keep them private.

Here's what Providence Journal columnist Edward Achorn wrote at the time about Lynch's behavior:

He would have served the public much better had he acted immediately to get the facts out, and let the investigation proceed. It is hard to see and no one has explained how sharing basic information with citizens would have impeded such an investigation. And it presents a clear conflict for the attorney general to join police in keeping records secret, when he is the government official charged with enforcing the Open Records Law.

With regard to Craigslist and the Phoenix, Lynch should concentrate on punishing illegal behavior, not speech. Prostitution and the dangers accompanying it, after all, have been with us forever.

An update on the Kazakhstan Internet

In my latest for the Guardian, I offer an update on a proposal to crack down on the Internet in Kazakhstan, which I earlier wrote about here and here.

More on the Kazakhstan Internet

Yevgeniya Plakhina reports that those proposed amendments cracking down on the Internet continue to wend their way through Kazakhstan's parliament.

In an e-mail to Media Nation, she writes: "Lower House of Parliament passed the amendments in the first reading. Of course, there's an oppurtunity to call them back — senate and the president can. but it might not happen."

Free the Kazakhstan Internet

Yevgeniya Plakhina

The InterContinental Hotel in Almaty, Kazakhstan, is about as isolating an experience as you can imagine. The luxurious surroundings — and the ever-present security guards — effectively separated the several hundred journalists attending last week's Eurasian Media Forum from whatever was going on outside.

So it was something of a surprise when that separation was breached last Friday afternoon. Between a panel on the global media crisis, which I moderated, and a panel on blogging, in which I participated, several people approached us with handouts, warning of proposed laws that would crack down on Kazakhstan's burgeoning blogosphere. We exchanged pleasantries, and that seemed to be that.

Then, during the blogging panel, one of them — an audacious 24-year-old woman named Yevgeniya Plakhina, wearing a shirt that proclaimed "SHHH!" — got up and demanded to know why six of her friends had been arrested for demonstrating against the proposals.

The moderator, Vladimir Rerikh, a Kazakh journalist, clearly wanted the issue, and Plakhina, to go away. But Danny Schechter, a well-known American progressive journalist, spoke up on Plakhina's behalf, and she was able to continue pressing her case. (Here is Schechter's account.) The organizer of the conference, Dariga Nazarbayeva, the daughter of President Nursultan Nazarbayev, could be seen talking on her cell phone, leaving the hall and returning several times.

Afterward, Plakhina, a reporter for the newspaper Respublika, was hanging around in the lobby. I approached her for an interview and asked to take her picture. I explained that I would be posting her picture on my blog, and asked if that would create any problems for her. She said it would not, and posed willingly.

Listen to an interview with Yevgeniya Plakhina

According to the materials Plakhina gave me, the Kazakh government proposes to regulate all online media — forums, chatrooms, blogs and social networks — by the same laws that currently govern mass-media outlets, which are not exactly based on the principles of the First Amendment. The legislation, if passed, could result in the blocking of foreign mass-media Web sites as well. In addition, the mass media would be prohibited from calling for peaceful demonstrations, according to the materials.

Plakhina told me that her group, For a Free Internet, began on March 2 by leaving comments on the prime minister's blog — more than 70 on the first day, and 400 within a week. The comments were all expunged, she added, and moderation was turned on, making it impossible to leave any further messages.

On March 7, the campaign staged a flash-mob event in front of the office of the national Internet provider, she said. She gave me a DVD of the event.

I asked her whether she was surprised that she was allowed to speak. "Well, yeah, that was surprise. Maybe because they don't know my face yet," she said, laughing. She added that she may have been allowed to go on because Rerikh, the moderator, didn't know what she was saying: "Well, thank God the moderator doesn't speak English."

Her friends were quickly released from jail. In an e-mail exchange yesterday, Plakhina told me:

Yes, my friends were released shortly after the session finished. I guess, the authorities were scared of international scandal, and released my friends. An advisor to the president on mass media Yermukhamet Yertysbayev has taken an active participation in releasing my friends. He came up to me at media forum and asked what happend with my friends, made a call and they've been released. They haven't been charged with anything because we didn't even start the demonstration (well, it was supposed to be a flash mob, not even a demonstration). Policemen had nothing to charge us with.

Kazakhstan is not North Korea, but neither is it a country where press freedom is firmly established. Several days ago, according to the Associated Press, an opposition newspaper publisher was imprisoned because he had not paid damages in a libel suit that, according to his supporters, was politically motivated.

Reporters Without Borders ranks Kazakhstan as 125th out of 169 countries in terms of press freedom. In addition, as Adil Nurmakov of Global Voices Online (one of numerous signers of Plakhina's letter) has reported, the blogging platform LiveJournal has been censored by the government. (Not to get too self-righteous: the United States ranks only 36th in the Reporters Without Borders report, and 119th in its "extraterritorial" practices, including its imprisonment of an Al-Jazeera videographer at Guantánamo for six years.)

Plakhina's group is trying to take advantage of the fact that Kazakhstan is about to assume the chairmanship of the Organization for Security and Cooperation in Europe, arguing that the proposed laws are contrary to the democratic spirit of the OSCE.

EurasiaNet has a thorough account of the proposed legislation.

During my brief time in Kazakhstan, I got the impression that the government is trying to move beyond its repressive past. The country, a former Soviet republic, also seems to be an island of stability in a volatile part of the world. It would send a strong and encouraging message if the government drops its proposal to censor speech online.

For more information, you can contact For a Free Internet at blokirovke {dot} net {at} gmail {dot} com.

First Circuit rejects libel appeal

The U.S. Court of Appeals for the First Circuit in Boston has refused to overturn a ruling (PDF) that statements made in matters of private concern may be found libelous even if true.

The court has also declined to accept (PDF) an amicus curiae brief filed by several dozen of the largest and most influential media organizations in the country, citing a conflict of interest that would be created if it were to do so. Apparently one of the judges has a tie to a media organization, which would force a recusal.

No word on what comes next. Is it possible that the U.S. Supreme Court will rule on this? The idea that a statement must be defamatory and false in order to be held libelous is so fundamental to our notion of a free press that it's hard to imagine the ruling will stand, even if it pertains only to Massachusetts, based as it is on a 1902 state law.

From the time I reported on this case for The Guardian, I've heard a low buzz suggesting that the ruling may not matter all that much, given that it pertains to private parties — and that, in fact, private persons deserve more protection under the libel laws than public officials and public figures.

My answer to that is that they already do, but that private figures — according to all the libel law that we understand — still have to prove falsehood.

I think the most telling case is that of Gertz v. Robert Welch, a 1974 Supreme Court decision about a libel suit brought by a lawyer who had been falsely defamed by a John Birch Society publication. The court ruled that the lawyer, Elmer Gertz, was a private figure, and would thus not to have to prove "actual malice" as defined by Times v. Sullivan (1964) — that is, he would not have to prove that the Birchers had published defamatory material knowing it was false, or with reckless disregard for the truth. Instead, the court ruled that, henceforth, private figures would have to show negligence at the very least, with the states free to adopt more stringent language if they chose.

Reading the Gertz decision, you can't help but be struck how the notion of falsehood is raised over and over. The phrase "defamatory falsehood" is used repeatedly. The most famous section of the majority decision, written by Justice Lewis Powell, is built around the principle that libel is a false and defamatory statement of fact:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Remember, Gertz was a private figure. Powell was writing quite specifically about the libel standards that should prevail when a private citizen brings a libel suit, yet he made it absolutely clear that falsehood and defamation are the two key elements of libel.

It's hard to imagine what the First Circuit is thinking.

Media heavyweights seek libel relief

Q: What do the Boston Globe, the Boston Phoenix and the Boston Herald agree on? A: The dangerous precedent that would be set if a ruling that undermines truth as a defense in libel cases is allowed to stand.

Earlier this week, according to the Boston Globe's Jonathan Saltzman, noted First Amendment lawyer Robert Bertsche filed an amicus curiae brief (PDF) asking that the full U.S. Court of Appeals for the First Circuit overturn a decision reached recently by a three-judge panel of that court. The brief is signed by a host of media giants, including the New York Times Co. (which owns the Globe), GateHouse Media (which owns more than 100 newspapers in Eastern Massachusetts), ABC, CBS, NBC, CNN, the Washington Post, Time Inc., WGBH and many, many others.

As I reported in the Guardian on Feb. 17, the decision, written by Judge Juan Torruella, allowed a libel suit to move ahead on the grounds that the offending speech (an e-mail to some 1,500 Staples employees about a sales director who'd been fired for violating the company's expense-report policies), though true, might be held libelous on the grounds that it was made with "actual malice."

In making that ruling, Torruella relied on the meaning of malice as it existed in 1902, when the Massachusetts law at issue went into effect — a meaning that Torruella defined as "ill will" or "malevolent intent." In Times v. Sullivan (1964), the U.S. Supreme Court redefined "actual malice" as a defamatory statement made even though it was known to be false, made with "reckless disregard" as to its truth or falsity.

The Torruella decision applies only to private persons, whereas the Times v. Sullivan and its progeny pertain to public officials and public figures. Nevertheless, in other decisions — most famously Gertz v. Robert Welch (1974) — the Supreme Court made it clear that even a libel suit brought by a private person must be based on a statement that was false and negligently made.

The amicus brief argues that if Torruella's ruling is allowed to stand, plaintiffs will be able to win libel suits if they are merely able to prove that the defendant was "out to get them." The brief continues:

In some quarters, it may even have the chilling effect of discouraging reporting and commentary on some of the most pressing issues of the day, such as the internal affairs of businesses coping with severe economic challenges, for fear that such matters might mistakenly be deemed to be of only "private concern."

This is a case of enormous importance to the beleaguered news media and, more important, to the public, which depends on tough, fair, truthful reporting. Let's hope the full court does the right thing.

An outrage against free speech

When politicians and good-government types talk about campaign-finance reform, what they often mean is censorship. Of course, they'll say they oppose censorship because censorship is bad, and what they propose is good. But it's censorship nonetheless.

As a purely symbolic protest, Media Nation today presents the trailer for "Hillary: The Movie," a right-wing, hateful documentary about Hillary Clinton that was making the rounds last year.

As Adam Liptak reports in the New York Times, the film was banned from television — banned! — because it ran afoul of the campaign-finance laws promulgated a few years ago by Sen. John McCain, Sen. Russell Feingold and former congressmen Marty Meehan and Chris Shays.

The Reports Committee for Freedom of the Press recently filed an amicus brief urging that the U.S. Supreme Court overturn the ban, instituted by the Federal Elections Commission and upheld by a lower court.

The First Amendment says in part, "Congress shall make no law ... abridging the freedom of speech, or of the press." What part of "no law" don't these people understand?

Another assault on free speech

Is there a trend afoot to enforce archaic anti-free speech laws and to ignore a century's worth of court decisions expanding the meaning of the First Amendment?

You've got to wonder. First we have last week's ruling by a three-judge panel of the federal appeals court in Boston undermining truth as an absolute defense in a libel suit. The ruling was based on a 1902 Massachusetts law that one would have thought would be ruled unconstitutional on its face.

Now, in Pennsylvania, state authorities have told a filmmaker that he can't call his business I Choose Hell Productions because of a state law banning names that "constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The filmmaker, with the help of the ACLU, has filed suit in federal district court.

It is well-established constitutional law that the 14th Amendment bars states from restricting rights more severely than the U.S. Constitution allows. I tell my students that Massachusetts laws against blasphemy were rendered unenforceable after the U.S. Supreme Court, in Gitlow v. New York (1925), made it clear that the First Amendment applied to the states. (All hail Wikipedia, which nicely explains the significance of Gitlow.)

We'll see if the federal court in Pennsylvania agrees.

A chilling decision about libel

In my latest for the Guardian, I analyze one of the most dangerous First Amendment decisions in many years — an opinion handed down by a three-judge federal appeals court panel in Boston last Friday holding that truth may no longer be an absolute defense against a libel suit.

The decision, written by Judge Juan Torruella of the U.S. Court of Appeals for the First Circuit, allows Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company. Staples's executive vice president, Jay Baitler, had sent an e-mail to some 1,500 employees stating that Noonan had been terminated for violating the company's travel and expense policies.

Torruella found that the contents of the e-mail were true, but added that, because Noonan is a private figure, the e-mail may have crossed the line into "actual malice." In reaching that conclusion, Torruella relied on a 1902 Massachusetts law and said that "actual malice" should be defined as "ill will" or "malevolent intent." Never mind that, in the 1964 case of Times v. Sullivan, the U.S. Supreme Court redefined "actual malice" so that it now pertains solely to statements made with deliberate falsity, or with "reckless disregard" for the truth.

Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, calls the ruling "the most dangerous libel decision in decades." Longtime Massachusetts newspaper editor William Ketter, now a top executive with the CNHI chain, writes that the decision "could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true."

In an e-mail to Media Nation, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

A panel of the First Circuit Court of Appeals has decreed that truth is no longer an absolute defense to a libel charge in Massachusetts. The ruling is troubling on so many levels that it beggars the imagination. Begin with the court's ruling that one can be found liable in damages for making a statement that is indisputably true — that is a notion that flies in the face of everyone's most basic understanding of what libel is.

With this decision, the First Amendment has been replaced by the maxim, "If you don't have anything nice to say, don't say it." Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What's worse, the court offers no guidance about how to distinguish what is of "public concern" from what is of "private concern." (You can be sure that among the 1,500 employees of Staples who received the company's statement about Noonan's firing, this was a matter of quite public concern.)

It is mind-boggling that the Court of Appeals offered so little analysis, and gave so little explanation, for a decision that arguably makes Massachusetts the least speech-protective state in the nation. Why didn't this federal court (in a diversity case, no less) ask the Massachusetts SJC [the state's Supreme Judicial Court] to opine on the validity and interpretation of this statute passed in the days of the buggy whip? It's a bit like the state police descending on Fenway Park to handcuff Terry Francona for violating state law against public spitting.

Talk about a chilling effect on speech! Lawyers across the state should advise their clients simply not to say negative comments about people. Even if what you say is true, you will be made to pay damages if a judge decides that what you said is not of "public concern" and a jury decides you were motivated by ill will.

This is a bad decision for employers and employees, because it will reduce the flow of information in the workplace. It's a disastrous decision for the media, and in particular for the new media: bloggers, people who post on Facebook, indeed anyone who has a website but lacks press credentials. That's because the mainstream media may be protected, at least haphazardly, by an assumption that if The Boston Globe writes about a topic, then by definition the topic is one of public concern. But no such presumption is likely to protect an outspoken blogger's critical remarks.

This is an aberrational ruling from a well-respected court. I remain hopeful that the three-judge panel will reconsider the ruling, or that the full Court of Appeals will agree to rehear it and correct this misjudgment. But until that happens, everyone who cares about free speech should lobby his or her legislator to remove this archaic statute from the law books.

As it stands, Torruella's decision applies only to Massachusetts. But what if the federal courts were to discover similar laws on the books in other states?

You might have thought that the court would find the 1902 law to be unconstitutionally restrictive in light of Times v. Sullivan and its progeny. Instead, Torruella chose to drag freedom of speech back into the pre-1964 dark ages. Amazing. And frightening.

Stop taxing free speech

In my latest for the Guardian, I argue that a recent proposal for tax-exempt, endowment-supported newspapers, though flawed, might be intriguing — but only if Lyndon Johnson's 55-year-old ban on political speech is repealed.

From a watchdog to a lapdog

The New York Times today runs a lengthy op-ed on the idea that the only way to save newspapers may be to turn them over to non-profit endowments. It's an intriguing notion, but the authors, Yale University endowment officers David Swensen and Michael Schmidt, point out a shortcoming that hadn't occurred to me before:

As educational and literary organizations devoted to the "promotion of social welfare," endowed newspapers would benefit from Section 501(c)(3) of the I.R.S. code, which provides exemption from taxes on income and allows tax deductions for people who make contributions to eligible organizations.

One constraint on an endowed institution is the prohibition in the same law against trying to "influence legislation" or "participate in any campaign activity for or against political candidates." While endowed newspapers would need to refrain from endorsing candidates for public office, they would still be free to participate forcefully in the debate over issues of public importance. The loss of endorsements seems minor in the context of the opinion-heavy Web.

Minor? Uh, no. It's bad enough that newspapers would be prohibited from endorsing candidates under this scheme. (Not that anyone reads endorsements; it's the principle that concerns me.) But it's easy to imagine that critics could go after the paper if any of its columnists, or even straight-news reporters, appeared to be "influenc[ing] legislation."

I want to see newspapers survive, but I'm not sure it's worth it if they have to give up their First Amendment rights. There's a reason that the Founders wrote, "Congress shall make no law ... abridging the freedom of speech, or of the press."

There are a few papers, such as the New Hampshire Union Leader and the St. Petersburg Times, that are for-profit businesses owned by non-profit educational institutions. Such a set-up may not provide all the tax advantages Swensen and Schmidt advocate, but it doesn't stop them from endorsing candidates for office. For instance, the Union Leader endorsed the McCain-Palin ticket this past October.

Swensen and Schmidt may mean well. But their proposal would diminish newspapers, turning them from independent watchdogs into government-subsidized lapdogs, afraid to exercise the constitutionally protected right to a free press lest the tax collector put them out of business.

Two years ago I wrote an article for CommonWealth Magazine on how alternative ownership models might save newspapers. In it, I took a look at the Union Leader and the St. Pete Times. The article is online here.

Because he might defend himself

Today we offer a postscript to Chuck Turner's absurd call for legal sanctions against media outlets that fail to presume his innocence in an ongoing federal corruption probe. Now the government wants to take away Turner's First Amendment rights. According to Boston Globe reporter Shelley Murphy:

Federal prosecutors urged a judge yesterday to prohibit Boston City Councilor Chuck Turner from revealing, or even talking about, evidence and witnesses the government is relying on to convince a jury that he pocketed a $1,000 bribe.

The best part is a letter written to the judge by Assistant U.S. Attorney John McNeil, in which he says in part: "Mr. Turner has held a series of press conferences and rallies since he was charged in this matter, aimed in part at bolstering his character and attacking the government's motives for seeking an indictment against him from the grand jury." And this is wrong?

McNeil goes on to say that Turner might "selectively" quote from the evidence against him, which could have the effect of "indirectly" intimidating witnesses and otherwise harming the case against him.

According to Laurel Sweet and Ed Mason, writing in the Boston Herald, the gag order sought by prosecutors could also derail an internal investigation by the Boston City Council.

The idea that Turner should be denied a look at the evidence against him unless he agrees to give up his First Amendment right to defend himself in public is offensive and outrageous. If prosecutors fear they can't win without Turner's silence, then they must be worried that they don't have much of a case.

When GateHouse met Google

Yes, it's all GateHouse all the time at Media Nation. In my latest for the Guardian, I cast a wary eye on Google's seemingly benign takeover of the virtual village common — and cite GateHouse as an example of why it may not be so benign after all.

Chuck Turner trashes the First Amendment

Boston City Councilor Chuck Turner may or may not end up doing time. But if the indicted councilor has his way, local journalists — including Joan Vennochi of the Boston Globe, Adam Reilly of the Boston Phoenix and Joe Fitzgerald of the Boston Herald — will be subject to legal sanctions for failing to presume that Turner is innocent.

On Friday, the Herald's Ed Mason reported that Turner had sent a letter to Gov. Deval Patrick asking that a task force be appointed that would investigate "collusion" between federal prosecutors and the media.

Over the weekend, John Guilfoil, the founder and editor of the online magazine Blast, posted the full text of Turner's screed. In it, Turner calls for nothing less than the abolition of the First Amendment. Guilfoil, a former student of mine, writes, "Five words, Councilor: 'Congress shall make no law.'"

Turner, in case you've forgotten, is under federal indictment, charged with taking cash bribes in connection with the Dianne Wilkerson case.

Tellingly, Turner cites Deuteronomy, the Quran, the Roman Code, the Universal Declaration of Human Rights and the Fifth, Sixth and 14th Amendments to the U.S. Constitution in his argument to muzzle the press, yet makes absolutely no mention whatsoever of the First Amendment, which clearly states: "Congress shall make no law ... abridging the freedom of speech, or of the press." (Subsequent amendments, as well as Supreme Court decisions, have broadened "Congress" to include all governmental bodies at the federal, state and local levels.)

Turner blasts columns by Vennochi, Reilly and Fitzgerald, saying they have "unashamedly proclaimed my guilt." He also claims that Globe columnist Adrian Walker's interview with Ron Wilburn, the cooperating government witness, is proof that the FBI's affidavit against Turner is full of lies (not how I would interpret it). And Turner includes this tantalizing tidbit:

Even Howie Carr, self proclaimed protector of the public good and verbal slayer of public officials who betray their trust has not even mumbled one word about the fact that the US Attorney’s wire is making accusations against him.

Really? Does anyone know what Turner is referring to? The ball's in your court, Howie.

Not to save the best part for last, but Turner closes by recommending legal sanctions against journalists who discuss "the 'evidence' in the court of public opinion before it has been presented in a court of law," including:

• "State legal policy should be significantly reformed to promote respect for the presumption of innocence among state officials, mass media representatives, and citizens."
• "Mass media outlets must be prohibited from spreading information that conflicts with the presumption of innocence."

Now, let me move on to the fallacy at the heart of Turner's proposal to round up journalists and send them to re-education camp. Yes, the legal system is required to presume that Turner is innocent unless it can be shown beyond a reasonable doubt that he is not. But the media are under no such constraints.

Turner is free to avail himself of the libel laws if he believes a journalist has said something about him that is false, defamatory and, as he is a public official, made with knowing falsity or reckless disregard for the truth. And there are circumstances in which the courts will intervene by way of gag orders on the lawyers in order to balance the First Amendment with the Sixth, which guarantees the right to a fair trial.

But this is not North Korea, or even Britain, where the press has far fewer protections than it does in the United States. (I've had a couple of interesting discussions with my editor at the Guardian, whose home office is in Manchester, England.) In the U.S., everyone is free to speak and write the truth as he or she sees it.

By the way, I am willing to grant Turner the presumption of innocence. Taking cash from a supplicant shows incredibly poor judgment, but let's wait and see if it adds up to a criminal act. (Although I was unimpressed by Turner's claim that the photo might have been doctored — a subject with which Turner has some passing familiarity.)

Regardless of whether Turner is guilty of bribe-taking, though, he has already convicted himself of holding freedom of the press in utter contempt.