The Boston Phoenix
July 2 - 9, 1998

[Muzzle Awards]

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 free speech.

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.

Sometimes the First Amendment wins -- as in the notorious case in Skokie, Illinois, in the 1970s, when a band of neo-Nazi thugs won the right to march through that largely Jewish community. Or, for that matter, this past weekend, when the Ku Klux Klan held a hate-filled rally in racially traumatized Jasper, Texas. Sometimes, though, the First Amendment is undermined and expediency wins out. Such was the case last December, when Massachusetts joined the federal government and 42 other states in making simple possession of child pornography punishable by lengthy prison terms -- even if the possessor had absolutely nothing to do with the manufacture or distribution of the vile materials.

To call attention to the various ways in which free speech is threatened, the Phoenix presents the Muzzle Awards, the first of what is intended to be an annual Independence Day roundup of well-intentioned knaves and censorious villains. The criteria: the person or persons being singled out must have committed their misdeeds in New England (most of our Muzzles are centered around Greater Boston); and said misdeeds must have taken place since July 4 of last year.

The "winners" were chosen by scanning various news databases, by reviewing the archives of the Phoenix, and by consulting with enemies of censorship, including John Roberts, executive director of the American Civil Liberties Union of Massachusetts; Nina Crowley, head of the Massachusetts Music Industry Coalition; free-speech activist Bob Chatelle; and Harvey Silverglate, a noted civil-liberties lawyer and Phoenix contributor.

The winners of the Muzzle Awards are those who put expediency above principle. When defiant protesters who refuse to obtain a necessary permit clog the streets and tie up traffic, it is easy for the police to crack down and teach them a lesson. When pedophile murder suspects are rumored to have viewed child pornography on a library computer, it is easy to call for pulling the plug on sleazy Internet content. When student editors attempt to report on an embarrassing personnel problem, it is easy to kill the piece.

By identifying 10 who took the easy way out, the Muzzle Awards honor the First Amendment and those who do the difficult work of keeping it alive and meaningful.

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 Chronicle.

Inspiring words. But also unrealistic, barring a major change of direction in the courts.

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 school systems.

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 prison term.

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 episode.

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 principles."

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 local Wal-Mart.

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 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 didn't like.

Bruce Tarr

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 here.

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 products."

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 activists.

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 defeated.

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 isn't Texas.)

"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, 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.

Peggy Davis-Mullen

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 molested.

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 charge.

Fortunately, Davis-Mullen was roundly criticized by the media and City Hall. And the Boston Public Library continues to treat adults like adults.

Paul Cellucci

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."

Suzanne Schrader

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 parents."

Dan Kennedy can be reached at dkennedy[a]

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