The first annual Muzzle Awards
10 who undermined freedom of speech
by Dan Kennedy
Two hundred twenty-two years ago this Saturday, the Continental Congress
adopted an audaciously subversive document: the Declaration of Independence.
With its celebration of "Life, Liberty, and the Pursuit of Happiness," the
Declaration stood as an early, exuberant statement of the intoxicating power of
Freedom of speech -- and of conscience -- was finally guaranteed 11 years
later, in the First Amendment to the Constitution: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances." Simple, straightforward words with profound implications.
Because the First Amendment's vitality is determined not by easy issues, but
rather by damnably difficult questions, oftentimes involving reprehensible
people and causes.
Federal Communications Commission
A Catch-22 policy shuts down Radio Free Allston
One fine day last October, Radio Free Allston founder Steve Provizer
was broadcasting The Solid Rock, a religious program, from his makeshift
studio at the Allston Mall. Suddenly two agents from the Federal Communications
Commission appeared. Their polite but firm message: Radio Free Allston, an
unlicensed FM community radio station that had been up and running since
February, was off the air.
The next day WDOA, in Worcester, got the same treatment.
Since 1978 the FCC has refused to license stations of less than 100 watts. Now
the agency -- acting at the behest of the giant monopolies that have taken over
radio following Congress's elimination of ownership restrictions two years ago
-- is cracking down on the several hundred illegal stations (sometimes called
"pirate" stations) that have sprung up. It's a classic Catch-22, with the feds
literally making it impossible for low-power, community-based radio to exist.
Under the guise of regulation, the FCC, with Congress's assent, has banned all
but the wealthy from having their own broadcast forum. It is, in fact, a
classic form of censorship -- and in the case of Radio Free Allston, it's
censorship of voices that literally couldn't be heard anywhere else. Provizer,
who took care not to interfere with any commercial station's signal, operated
openly and offered talk, foreign-language, and non-mainstream music programs
simply unavailable elsewhere on the dial. He carried political debates the big
stations couldn't be bothered with. He was even presented with a commendation
from the Boston City Council. But rules are rules. So when an engineer at
WROR-FM (owned by New Jersey-based Greater Media) dropped a dime, the FCC was
quick to respond.
The Massachusetts chapter of the American Civil Liberties Union has taken up
Provizer's cause. But don't hold your breath. Just two weeks ago, a federal
judge in California issued a permanent injunction against Free Radio Berkeley,
whose founder, community-radio pioneer Stephen Dunifer, had been fighting a
surprisingly effective legal battle since 1993 to stay on the air.
"You can shut off one radio station, but you can't shut off an idea whose time
has come," a defeated but defiant Dunifer told the San Francisco
Inspiring words. But also unrealistic, barring a major change of direction in
Sandwich Public Schools
A career is destroyed over a critically acclaimed film
Ed Pasko may not have made the smartest decision of his previously spotless
14-year career when he showed his seventh-grade Spanish class the film Un
señor muy viejo con unas alas enormes ("A Very Old Man with Enormous
Wings"). The 1988 Cuban film does, after all, include scenes of nudity and sex,
hardly typical classroom fare for 12- and 13-year-olds.
But the purchase of the film -- a critically acclaimed adaptation of a short
story by Nobel Prize winner Gabriel García Márquez -- had been
approved by Pasko's principal, Matthew Bridges, at Sandwich's Henry T.
Wing School. It was shown at the Museum of Fine Arts in 1990. And it's listed
as a recommended choice in two catalogues put out by companies that market to
So when several of Pasko's students complained that their teacher was showing
them a dirty movie, Pasko had every reason to believe his superiors would stand
behind him in public -- even if they chose to chew him out privately. Instead,
Pasko was hung out to dry. First, Bridges -- the same principal who'd signed
off on the purchase order -- suspended him. Then Bridges fired Pasko and a
substitute teacher who had showed the film at Pasko's direction. Next, schools
superintendent Peter Cannone stood by as police investigated the matter and
referred it to the Barnstable district attorney's office for possible
prosecution on obscenity charges -- which could have resulted in a five-year
Ultimately, Pasko, a published scholar, was allowed to keep his freedom and at
least some of his professional dignity. The DA declined to press charges -- not
because Un señor so obviously did not meet the definition of
obscenity (although unrated, it's considered to be about the same as a typical
"R" movie), but instead on the narrow grounds that the school, rather than
Pasko, had purchased it. Pasko also worked out a settlement in which his firing
was rescinded and he was allowed to resign.
Obviously a teacher does not have a right to expose his students to anything
he wishes, and Un señor was arguably inappropriate for seventh
graders. The school system had every right to tell Pasko not to show the film
again. But by failing to stand up for Pasko when those who were offended
demanded blood, the Sandwich school system failed its First Amendment
responsibilities. As a result, Pasko's former students received a lesson in
censorship -- and bureaucratic cowardice -- far more revealing than anything
they learned in his classroom.
Town of Plymouth
State, county, and local police rough up peaceful protesters
No, the 300 or so Native Americans who marched in last Thanksgiving's
National Day of Mourning did not obtain a parade permit beforehand. After all,
it would have been surpassingly strange for them to tug their forelocks before
the very authorities whose legitimacy they intended to challenge.
Yet the police and their defenders cite the lack of a permit as justification
for grossly overreacting as they dispersed the chanting, peaceful protesters
near Plymouth Rock -- even though the protest, an annual event, was a surprise
to precisely no one. After warning the marchers to leave the area, the police
gassed some of them with pepper spray and roughly handled a few who resisted
arrest. Women and children were reported to have fled the scene crying after
the pepper-spray attack. Altogether, 25 people were arrested; charges against
two were quickly settled, and the remaining 23 are scheduled to go on trial
this September -- essentially for showing defiance in the face of oppression.
The police reaction was a frightening example of unjustified rage at a free
people trying to exercise their First Amendment rights "peaceably to assemble,
and to petition the Government for a redress of their grievances." Some
protesters were reportedly grabbed even as they tried to comply with police
demands to leave the street. Massachusetts ACLU executive director John
Roberts, who participated in the march, told the Boston Globe, "One of
the leaders was just trying to talk to the police when they threw him down."
Dishonorable mentions go to Plymouth County district attorney Michael Sullivan
for putting his relationship with the local police ahead of the quest for
justice, and to the Quincy Patriot Ledger for kicking the protesters
when they were down. After former US attorney general Ramsey Clark condemned
the police's "racist" overreaction, the Ledger sneeringly editorialized
about Clark's advocacy of "all manner of anti-government causes. His main
battle this decade has been against US involvement in Iraq, and he also
defended members of the Branch Davidian cult after the assault by the FBI on
the compound in Waco, Texas."
Attempting to silence a critic by linking him to unpopular causes is a cheap,
ugly trick that should be beneath a paper as respected as the Ledger.
Somehow, though, it seems appropriate in the context of this miserable
The Reverend Juan Romero
An enemy not only of gay rights but of free speech
Essential to the First Amendment's guarantee of religious liberty is the
separation of church and state: the principle that one particular set of
religious beliefs must not be imposed on others through the power of
government. The First Amendment guarantees not just freedom of religion, but
freedom from religion as well.
But that didn't stop the Reverend Juan Romero of Iglesia de Dios, a
Pentecostal church in Lawrence, from appearing before the Lawrence City Council
on March 19 to demand that the councilors deny a parade permit to those seeking
to hold the city's first gay-pride march. "This could be unmanageable here,"
Romero told the Boston Globe. "This is an issue that's polarizing the
city. We have enough issues to deal with. I'm not homophobic, but homosexuality
is an abomination before God. We've spoken out because we're guided by biblical
Fortunately, it didn't work. Despite some grumbling, the city council voted to
do the right thing. And for that, free-speech advocates should thank Chester
Darling, a lawyer who has often -- and wrongly -- been derided as a homophobe.
In years past, Darling represented the South Boston Veterans Council in its
efforts to keep a gay and lesbian organization out of the St. Patrick's Day
Parade. Darling argued that he was motivated not by homophobia, but rather by
his belief that the veterans' own First Amendment rights deserved to be
protected. Darling put his principles where his mouth is in Lawrence,
threatening to sue the city if the gay group was not granted the parade permit
it was legally entitled to.
And by the way, it looks like God caught wind of the hatemongering in
Lawrence, and was She pissed. The result was a driving rainstorm on the day of
the march. It didn't interfere with the gay-pride parade, which went off
without a hitch. But a plan to bus some 300 children to an amusement park so
they would not be exposed to the parade had to be canceled.
Economic censorship takes the rock out of rock and roll
Under certain circumstances, an economic boycott might be considered an
expression of free speech. If a business refuses to stock a product on ethical
grounds, well, the people who run that business have made their point, and
consumers who really want that product can go elsewhere.
But if that business happens to be Wal-Mart, which sells some 50 million
of the 600 million compact discs that are sold in the US every year, such
an exercise in corporate free speech looks much more like an exercise in
corporate censorship. In many parts of the country -- even in some parts of
Massachusetts, where the megachain isn't as dominant as it is elsewhere but is
growing nevertheless -- there's simply no place to buy music except at the
Wal-Mart is using its monopoly power to control the public dialogue. It
accomplishes this by refusing to stock CDs that carry a parental warning label.
If record companies want to gain entrée, they must do special pressings
to eliminate violent or sexually explicit lyrics. Consumers have no way of
knowing they've bought eviscerated products.
Religious-right columnist Cal Thomas and self-appointed morality czar William
Bennett have applauded Wal-Mart for sanitizing art. In fact, if Wal-Mart
stopped there it would be bad enough. But its arbitrary behavior, as documented
by the New York Times and others, is actually much, much worse. It
refused to stock the soundtrack album to Beavis and Butt-head Do America
because of a chainwide ban on the cartoon duo. It ordered that images of Jesus
and the devil be airbrushed off the cover of a CD put out by middle-of-the-road
rocker John Mellencamp, of all people. And it banned a Sheryl Crow album for
purely political speech: one of the songs took Wal-Mart to task for selling
guns to children.
Other chains, such as Blockbuster Video and Kmart, are guilty of the same
censorious behavior. But no retailer has the clout of Wal-Mart and its 2300
stores -- 10 within 50 miles of Boston. Not everyone, of course, lives within
traveling distance of a first-class music retailer. And the Times found,
frighteningly, that Wal-Mart's low prices were driving small, independent
record stores out of business.
There is an alternative that's available everywhere: Web retailers such as
Amazon.com and CDnow. Eventually, such businesses may make Wal-Mart suffer for
its actions. But for a kid who wants to rock but lacks an Internet connection,
a credit card, or both, Wal-Mart has censored his choices just as thoroughly as
if Tipper Gore had pawed through his CD collection and confiscated what she
His "veggie libel law" would put the chill on food critics
When Oprah Winfrey went on trial in Texas for defamation of hamburger
earlier this year, the smug among us might have believed it couldn't happen
They would have been wrong.
In fact, an agricultural-disparagement bill -- a/k/a the "veggie libel law" --
is being pushed by state senator Bruce Tarr, a Gloucester Republican. Such laws
have been adopted by about a dozen states (including Texas) and are under
consideration in a dozen or so others.
The Tarr legislation, titled "An Act Prohibiting Disparagement of Perishable
Agricultural or Aquacultural Food Products," is a doozy, allowing for lawsuits
against anyone who provides "false information about the safety of the food
supply" that "would be extremely detrimental to the economy, the welfare of the
consuming public, and the producers of agricultural and aquacultural food
Though written to sound as though it would protect hard-pressed farmers and
fishermen, it's clearly designed to scare off critics who might be intimidated
into silence by the threat of lawsuits.
Aside from the free-speech questions raised by such a bill, there is the
not-insignificant matter of what constitutes a false statement. Take the
Vermont-based environmental group Food & Water. Through advertising and
publicity campaigns, Food & Water agitates against pesticides, food
irradiation, and the use of genetically engineered hormones in dairy cattle.
Food & Water's assertions that such products pose a danger to human health
are rejected by a majority of scientists. But the dissenters in the scientific
community have a right to be heard.
Michael Colby, the head of Food & Water, charges that food-disparagement
laws are nothing less than an attempt to silence him and like-minded
The Massachusetts bill filed by Tarr has been tied up in committee limbo for
many months now. If it is ever brought to a vote, it should be soundly
Wentworth Institute of Technology
Political correctness taken to a ludicrous extreme
Political correctness gets a bad rap. At its best, it's a way to
navigate respectfully through differences of race, gender, and sexual
orientation. Nevertheless, there's no doubt that the "PC police" sometimes get
carried away. A textbook example: administrators at the Wentworth Institute of
Technology, who last fall shut down a joint Wentworth-Wheelock College
production of The Best Little Whorehouse in Texas because the name of
the play contained a word not generally used in refined company. (No, the word
"We can't believe the matter has gotten this much attention," Wentworth vice
president John Heinstadt told the Phoenix recently
(Freedom Watch," by
Harvey Silverglate and Gia Barresi, Boston Phoenix News, March 27). As justification for his
college's censorious act, Heinstadt said Wentworth wanted to protect its
"positive image" as it celebrated 25 years of accepting women. It was, he
added, a "PR matter."
Yet despite the supposedly tender female sensibilities that Wentworth sought
chivalrously to protect, the play aroused no protest at Wheelock, where
90 percent of the students are women. It was Wheelock students who
originally suggested Whorehouse. The Wheelock faculty adviser was a
woman, the play's assistant director was a woman, and female Wheelock students
made up most of the play's intended cast.
Henry Hansen, a Wentworth freshman who was to play the lead, expressed his
outrage in a flier distributed widely on campus. "I am at college for so many
reasons," he wrote. "I want to meet new people, have my freedom, and hopefully
learn more about life. . . . In less than three weeks, Wentworth
has [already] censored my art and expression."
No doubt Wentworth considers that a small price to pay in its ongoing quest
for political correctness -- and for good PR.
Exploiting a tragedy to win a few extra votes
New England -- and the nation -- were horrified last fall when
10-year-old Jeffrey Curley, of Cambridge, was murdered and his body sexually
Boston city councilor Peggy Davis-Mullen, though, had something else on her
mind: winning a tough reelection battle. And so on October 9, Davis-Mullen
fired off a press release claiming that Curley's accused killers had viewed
child pornography on the Internet at the Boston Public Library, and demanded to
know what library officials intended to do about it.
"It's a magnet for weirdos," she told the Boston Herald. "There is no
legitimate purpose to having pornography at the public library."
Eight months earlier, Davis-Mullen had erupted over reports that children were
viewing porn at the BPL. Mayor Tom Menino ordered incoming BPL president
Bernard Margolis to act. As a result, filtering software was installed on
computers used by kids; children who had permission from their parents could
obtain unfiltered access. That was a reasonable solution to a real problem,
although the age for unfiltered access that Margolis finally settled on -- 18
-- is arguably higher than it should be.
But the steps Margolis announced weren't good enough for Davis-Mullen, who
insisted after the Curley tragedy that the censorware be installed on computers
used by adults, too. Never mind that filtering software is an imperfect
solution that blocks legitimate sites devoted to topics such as sex education
and gay rights. Never mind that even the software manufacturer has warned
libraries that imposing restrictions on adults would be unconstitutional. Never
mind that no evidence ever emerged to back up Davis-Mullen's sensational
Fortunately, Davis-Mullen was roundly criticized by the media and City Hall.
And the Boston Public Library continues to treat adults like adults.
Pandering with an anti-child-porn law
In 1969 the US Supreme Court established a vital free-speech principle.
In striking down a Georgia law that banned the possession of obscene materials,
the Court ruled, "If the First Amendment means anything, it means that the
State has no business telling a man, sitting alone in his own house, what books
he may read or what films he may watch." Though authorities were free to arrest
and prosecute those who manufactured or distributed obscenity, a person's right
to privacy trumped any government interest in preventing him from merely
possessing such material, no matter how vile or depraved it might be.
Otherwise, government's power over the individual would become
unconstitutionally oppressive and intrusive.
Unfortunately, the courts have been in retreat ever since. In 1990 the Supreme
Court, on a 6-3 vote, upheld an Ohio law banning the simple possession of child
pornography. Writing in dissent, Justice William Brennan said of the defendant,
Clyde Osborne: "Mr. Osborne's pictures may be distasteful, but the Constitution
guarantees both his right to possess them privately and his right to avoid
punishment under an overbroad law."
Politicians knew a good issue when they saw one. So by the time Acting
Governor Paul Cellucci signed a state law banning the possession of child
pornography last December, Congress and 42 states had already passed their own
versions of such a law. By pandering rather than leading, Cellucci forfeited
yet another chunk of his reputation as a Bill Weld-style libertarian.
Let's be clear: child pornography, in addition to being reprehensible on its
face, is also a grotesque exploitation of children. Indeed, the Supreme Court's
1990 decision justified the Ohio law on the grounds that outlawing the demand
for such material might help reduce its supply. But as the Court recognized in
1969, noble ends do not justify repressive means. The Massachusetts law, for
instance, would impose a five-year prison sentence on those who download a
child-porn image on a home computer. Who would enforce such a law? Will
computer repair shops be deputized to scan hard drives and report their
contents to the police?
In an editorial blasting the Ohio decision, the Washington Post --
hardly a bastion of radical libertarianism -- declared: "Child pornography in
the raw and incontestable form apparently at issue in this case is horrible. So
is the opposite horror film of police rummaging for incriminating photographs
through desk or bureau drawers in a person's home. . . . The
state should find other means to combat the pornographers. They exist."
Schools superintendent tries to silence students
Two months ago the Paper Clip, the high-school newspaper in
Portsmouth, New Hampshire, was ready to go to press with an explosive
editorial. Co-editors Catie Fontaine and Geoff Ward charged that drama teacher
and director Daniel Gerstein -- suspended without pay for failing to report a
relationship between a 37-year-old teacher and an 18-year-old student -- was
being unfairly punished because numerous faculty members were also aware of the
affair and did nothing.
Schools superintendent Suzanne Schrader acted swiftly and decisively: she
killed the editorial, claiming it invaded the student's privacy (dubious, given
that it didn't name her) and could result in a libel suit. When one of the
student journalists attempted to interview her, she reportedly responded: "Come
back when you graduate from college."
There the matter might have ended were it not for the newspaper's faculty
adviser, Lynda Bettcher, and the daily Portsmouth Herald. At graduation
ceremonies Bettcher singled out Fontaine and Ward as "courageous," thus
embarrassing Schrader and other administrators. Next the Herald picked
up the ball, quickly determining that the editorial was not libelous and
publishing it on the front page on June 5.
The editorial was hardly perfect, says Herald managing editor for news
Howard Altschiller. But he adds that he's appalled school officials didn't use
the incident as a learning experience, working with Fontaine and Ward to
transform what they'd written into something that did pass muster. "We kicked
it back to them and said, 'You need to confirm this, you need to substantiate
this. Is it on the record? Where?' Just as if they were members of our own
staff," Altschiller says. "We helped them make it better."
Two days after the Paper Clip editorial appeared, the Herald ran
its own editorial, summarizing the issues thus: "The contents of the
[students'] editorial are not favorable for the School Department's case. It's
no surprise that they would try to suppress the information. In the end, they
only succeeded in bringing heightened attention to the matter, with
heavy-handed tactics designed to intimidate young journalists and their
Dan Kennedy can be reached at dkennedy[a]phx.com.