The Boston Phoenix
June 29 - July 6, 2000


The Muzzle Awards, continued

by Dan Kennedy

Prior restraint rears its ugly head

On the cosmic scale of journalistic importance, broadcasting a surreptitiously made tape of kids' having their questions about gay sexuality answered hardly ranks with publishing the Pentagon Papers, which exposed the secret history of US involvement in the Vietnam War. But thanks to Suffolk Superior Court judge Allan van Gestel, the two cases share something in common: the patently unconstitutional assertion that the government may prohibit the media from reporting information it already has. It's called prior restraint, and for those who thought it was long dead, van Gestel's actions were a chilling reminder that First Amendment rights must be fought for over and over again.

The case was set in motion on March 25, at a seminar at Tufts University organized by the Gay, Lesbian, and Straight Education Network (GLSEN) titled "What They Didn't Tell You About Queer Sex and Sexuality in Health Class." The 14-to-21-year-old participants were given assurances of strict confidentiality. What they didn't know was that Scott Whiteman, of the right-wing Parents' Rights Coalition of Massachusetts, was in the room, secretly taping the proceedings.

After the contents of the tape made their way onto the talk-radio station WTKK (96.9 FM) and the Web site of the hatemongering Massachusetts News, Gay and Lesbian Advocates and Defenders (GLAD) took the Parents' Rights Coalition to court, hoping to prevent wider distribution. GLAD also named as defendants "Does 1-1000," in an attempt to place the same restrictions on anyone else, known or unknown, who might have a copy.

On May 17, Judge van Gestel went along with GLAD to an extent that can only be described as startling. First, he restrained Whiteman and the coalition's president, Brian Camenker, "from any action of any kind that would disclose the contents of the workshop." Next, he broadened his order to include "defendants' officers, agents, servants, employees, and attorneys." Finally, he threw in "any and all persons who presently possess a copy of the tape and attempt to disclose or use such tape in any forum." In other words, the first time WTKK talk-show host Jeanine Graf broadcast the tape, she was guilty only of sensationalism and of pandering to her homophobic listeners. After van Gestel's order, she would be guilty of breaking the law.

The free-speech implications of van Gestel's order were immediately seized upon by the Parents' Rights Coalition's lawyer, Chester Darling, who has a distinguished record of defending the free-speech rights of unpopular groups. (Though Darling is best known for representing a South Boston veterans' organization that sought to ban gay and lesbian marchers from its St. Patrick's Day parade, he also threatened to sue the city of Lawrence in 1998 if it refused to grant a permit for that city's first gay-pride march.) Most notably, Darling invoked the 1971 Pentagon Papers case, in which the Supreme Court ruled that the government could not prevent the New York Times from publishing purloined documents. That case, Darling wrote, "spoke clearly against prior restraint of speech, even when the written speech was a confidential document illegally stolen from the Department of Defense." The Fox News Network also filed a brief protesting van Gestel's "unconstitutional prior restraint," arguing, "Simply put, this court has restrained Fox News and all media from reporting on or discussing aspects of a significant news story."

The arguments had an effect. On May 25, van Gestel issued a new injunction, this one applying only to Whiteman, Camenker, their organization, "and any persons in active concert or participation therewith." Van Gestel added: "Nothing in this preliminary injunction shall be deemed to apply in any way to the print or electronic news media."

To be sure, van Gestel was not the only participant who showed poor judgment. First there was the Parents' Rights Coalition, for grotesquely violating the confidentiality that had been promised to the kids who attended the workshop. There were WTKK hosts Graf and Jay Severin, who attacked the workshop educators as, essentially, advocates of perversion. And there was state education commissioner David Driscoll, who responded to the controversy by firing one staffer who'd been involved in the workshop, forcing another to resign, and eliminating a consultant. Granted, even a GLSEN spokesman said he was "surprised and troubled" by some of the frank talk that took place at the workshop, which included such topics as oral sex and fisting. But a partial transcript also shows that the facilitators were attempting to respond honestly to the kids' legitimate questions.

Only van Gestel, though, subverted anyone's constitutional rights. Fortunately the harm he caused was undone, at least in part. But what on earth was he thinking?

Keeping the streets Mumia-free

Protester Nick Giannone and two high-school students learned an important lesson last September. If you put up handmade posters to advertise an upcoming yard sale, the local police will leave you alone. But if you put up handmade posters letting the public know about an upcoming rally for convicted cop-killer Mumia Abu-Jamal, you'll get arrested and charged with violating the state's anti-tagging law.

As reported by the Boston Phoenix, the three were arrested for posting fliers urging a walkout at Weymouth High School on behalf of Abu-Jamal, who has become a cause célèbre in radical-left and anti-death-penalty circles. Despite overwhelming evidence that the outspoken and articulate Abu-Jamal is guilty as charged in the 1982 murder of Philadelphia police officer Daniel Faulkner, serious questions remain as to whether he received a fair trial.

The case against Abu-Jamal may remain in doubt, but the case against the Giannone Three is pretty clear-cut. If the First Amendment stands for anything, it must stand for the right of citizens to get their message out to the public. Posting information about an upcoming political rally is about as basic to constitutional rights as you can get -- the equivalent of climbing on a soapbox in a public park and declaiming on the issues of the day. The actions of the Weymouth Police sent a chilling message that, for those who lack access to a printing press or a TV or radio station, free-speech rights can be mighty limited indeed.

Giannone -- who had previously had some minor scrapes with the law -- works with Refuse and Resist, a pro-Mumia group based in New York. Speaking of his arrest for "tagging," he told the Phoenix, "I think it has to do with the message more than anything, the message that youth in this town support a new trial for someone framed for killing a police officer." Added his lawyer, Damon Borrelli: "The issues that Mr. Giannone is raising are obviously issues of freedom of speech."

According to the Quincy Patriot Ledger, Giannone's co-defendants, who were minors at the time of their arrests, received probation. But Giannone chose to serve a short jail sentence for violating a probation he was already serving rather than be sentenced to additional probation.

Thus, for Giannone, the price of free speech was 10 days in the can.

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Dan Kennedy can be reached at dkennedy[a]

1998 Muzzle Awards
1999 Muzzle Awards