The Muzzle Awards

Ten who undermined freedom of speech and personal liberties

by Dan Kennedy

There is nothing subtle about the repressive and censorious actions behind this year's Muzzle Awards.

At Brown University, some pupils didn't like it when the student newspaper, the Brown Daily Herald, published a provocative ad opposing slavery reparations for African-Americans -- so they stole and destroyed copies of the paper and mobbed the Herald's office.

In Newburyport, Massachusetts, residents were asked to pay $60 to have bricks on a public walkway inscribed with a message of their choice. But when Mayor Lisa Mead received complaints that two of the bricks contained religious references, she had them removed.

Ever leery of the potential excesses of democracy, the Founders warned against the tyranny of the majority, who might vote to take rights away from the minority. But that didn't stop Massachusetts citizens last fall from stripping prison inmates of the right to vote, thus drawing an ugly mustache on the state constitution written some 200 years ago by John Adams.

This year's Muzzle Awards include a repeat winner as well. Former Massachusetts governor Paul Cellucci, who also won both in our inaugural year, 1998, and in 1999, joins our Hall of Shame for insisting that the MBTA stick to its anti-free-speech policy of refusing to run advertising by a marijuana-decriminalization group. Hall of Shame members are ineligible for future awards, but we at Muzzle Central are grateful for Cellucci's many contributions over the years.

This year's round-up of anti-free-speech zealots -- presented, once again, just before the Fourth of July -- was compiled by keeping a close eye on freedom-of-expression issues throughout the year. It is based mainly on stories reported by various New England news outlets, including the Phoenix, and on the Web sites of free-speech

organizations such as the American Civil Liberties Union (www.aclu.org) and the Freedom Forum (www.freedomforum.org). The criteria: the person or persons singled out must have committed their misdeeds in New England news outlets, including the Phoenix, and on the Web sites of free-speech organizations such as the American Civil Liberties Union (www.aclu.org) and the Freedom Forum (www.freedomforum.org). The criteria: the person or persons singled out must have committed their misdeeds in New England, and said misdeeds must have taken place -- or come to fruition -- since July 4 of last year.

A final note. Since last year's Muzzle Awards were announced, we have learned that the Thomas Jefferson Center for the Protection of Free Expression has been awarding the "Jefferson Muzzles," to dishonor enemies of free speech on a national level, since 1992. The Jefferson Center can be found on the Web at www.tjcenter.org.

THE MOB AT BROWN
Student protesters threaten newspaper

Onetime leftist David Horowitz has made his reputation as a racial provocateur, reinventing himself in recent years as an outspoken conservative.

This spring, in a blatant bid to raise his profile, Horowitz submitted an ad to college newspapers across the country. The title: "Ten Reasons Why Reparations for Slavery Is a Bad Idea -- and Racist Too." His hope: to castigate student journalists who refused to run the full-page ad as hostile to free speech.

Yet his greatest publicity coup came at a college whose paper did run the ad -- Brown University, where the Brown Daily Herald took Horowitz's $725 and published his ad in its March 13 edition. Three days later (this obviously was not a spontaneous action), a mob of Brown students stole and destroyed copies of the paper and stormed the Herald's offices to demand that the editors apologize, and that they give the money "back to the Third World Community." Herald staff members reportedly barricaded themselves inside as frenzied protesters attempted to break in and grab the last 100 copies of that day's paper.

To their credit, the Herald's editors refused to back down -- and the university administration supported them. The next day, 4000 copies of the paper were distributed under police guard. Brown's interim president, Sheila Blumstein, called the removal and destruction of the newspapers "unacceptable."

There is no shortage of candidates for this particular Muzzle. Brown's director of Afro-American studies, Lewis Gordon, told the Washington Post, apparently with a straight face, that the papers seized by the protesters couldn't be considered stolen because "if something is free, you can take as many copies as you like." The self-styled Coalition of Concerned Students even found something pernicious in the Herald's status as a privately owned corporation that receives no Brown funds, justifying the protesters' actions by accusing the Herald of "masquerading as a University paper."

The Muzzle, though, has to go to the nameless mob that destroyed papers and pounded on the Herald's doors. Some were certainly coalition members; but no doubt others were just along for the excitement. A mob is a terrifying, mindless force, even when it consists of privileged Ivy League students. No one's rights are safe when a mob mentality takes over.

Obscured by the free-speech controversy were the merits of Horowitz's ad, which are certainly debatable. For instance, Horowitz's assertion that "trillions of dollars" have already been paid to African-Americans in the form of welfare and hiring preferences is not just offensive but wrong, given that more whites than blacks are on welfare.

Nor was the Brown Daily Herald under any obligation to accept the ad. College papers that turned it down have nothing to be ashamed of. At least one paper -- the Harvard Crimson -- showed uncommon good sense by rejecting the ad, but then running an image of it to accompany an article on the issue.

But the Brown Daily Herald, once having decided to accept the ad, had every reason to expect that its free-speech rights would be respected. That those rights were threatened in an academic environment only compounds the ugliness.

ATTLEBORO POLICE
Targeting S&M in "Paddleboro"

They were ordinary men and women who liked to dress in exotic leather outfits and spank each other. Until, that is, one night last July, when Attleboro police raided their club. Suddenly they were the subject of titters, and of snickering Boston Herald headlines such as SPANK BUST RIPPED AS BUM RAP.

But "Paddleboro," as the affair came to be known, was about something considerably more important than the dubious joys of sadomasochism. At root, it was about the right of people to participate in consensual sex, in private, without having to fear that police will burst in and arrest them.

Police patrolling a privately owned building stumbled across a reported 50 or so men and women with whips, chains, and other S&M toys. A Manhattan woman, Stefany Reed, was charged with assault and battery for spanking a woman with a wooden spatula. Ben Davis, a Hudson, New Hampshire, man suspected of running the $25-per-person party, was charged with assaulting a police officer, as well as with several other offenses that sound like something out of the 17th-century Puritan legal code, such as exhibiting or lending articles for self-abuse and keeping a house of ill fame for lewdness.

By all accounts, the woman on the receiving end of the spatula suffered nothing worse than some reddening of the skin -- something she had, after all, requested. As ACLU of Massachusetts lawyer Sarah Wunsch told the Associated Press, "In general, voluntary sexual conduct between consenting adults is constitutionally protected activity -- or should be." Added lawyer John Ward, "If you take the sex out of it, what is the difference between this and boxing and other dangerous activities that people engage in all the time?"

But Attleboro police were unrepentant. And prosecutor Roger Ferris, in an interview with the Providence Journal, defended the arrests, contending that Davis had struck one of two cops who discovered the party while on a routine patrol of the building. "The assault gave them the right to go inside and make the arrest," Ferris said.

Ferris's comments, though, serve as little more than a convenient cover for a disturbing truth: once police had obtained entry, they used their presence to go after people whose idea of a good time did not jibe with the officers' view of mainstream norms.

Numerous news reports pointed out that the club had operated for months without being detected, even though it was across the street from the Attleboro police station and a short distance from City Hall -- further proof, if any were needed, that the S&M enthusiasts were not bothering anyone.

It's time for the Attleboro police to get the message.

A Web site devoted to Ben Davis's legal defense can be found at www.paddleboro.com.

BACK BAY ARCHITECTURAL COMMISSION
Keeping the streets news-free

Have you ever noticed how parking meters clash with the historical nature of the Back Bay? For that matter, what about cars? There weren't any in the late 19th century, when the swampy flatlands first were filled in and Boston's most fashionable neighborhood came into being.

No one, though, is proposing that parking meters, cars, power lines, telephones, air conditioners, laptop computers, or skim-milk lattes be banned in the name of historical accuracy. What are being banned are news boxes -- an important tool for distributing newspapers, magazines, and other publications, and in some cases just about the only tool available.

In May, the Back Bay Architectural Commission voted to ban all news boxes from the neighborhood, encompassing an area from Boylston Street to Storrow Drive, and from Arlington Street to Charlesgate East. The ban will take effect on August 9. The regulation was enacted in the name of removing eyesores. But the real, if unintended, target was free speech.

Freedom of the press doesn't count for much if the press can't get its message out. For large, paid-circulation daily newspapers such as the Boston Globe, the Boston Herald, the New York Times, and the Wall Street Journal, news boxes are a vital supplement to other means of distribution such as home delivery and newsstand sales. For free publications such as the Phoenix, its sister publication Stuff@Night, the Tab, the Improper Bostonian, and Metro, news boxes are the primary method of delivery.

This is not a matter of special pleading. The public streets are an extension of the traditional public square, the place where pamphleteers and polemicists compete in Oliver Wendell Holmes Jr.'s "marketplace of ideas." Yes, news boxes can be messy, but democracy is messy. The fuddy-duddies who serve on the architectural commission seek a public square as tidy as what once existed in the former East Germany.

Some supporters of the ban, such as district city councilor Mike Ross, say the news boxes will be replaced by "condominiums" that will hold a variety of publications, but will be less unsightly than news boxes. But the efficacy of such an arrangement is unproven; and in any case, there has been little or no movement on the condominium front, making it likely that there will be neither news boxes nor condominiums when August 9 comes around. As Ross recently admitted to the Phoenix, "We may have a proposal ready to go, but it may not be able to be implemented until spring 2002."

A particularly outspoken opponent of the news-box ban is WBZ Radio talk-show host David Brudnoy, a Back Bay resident, who wrote to the commission that the boxes "provide a needed service both to the residents of the Back Bay, among them me, and to the purveyors of information and opinion."

Unfortunately for the public, the ban is likely to stand: in 1996, the state's Supreme Judicial Court ruled that a similar ban on Beacon Hill passed constitutional muster.

MARY BLACK ANDREWS
An obscene anti-obscenity bill

Call it the six-dildo rule.

Earlier this year, Maine state representative Mary Black Andrews, a Republican from York, filed a bill to define and outlaw obscenity. In 1973 the US Supreme Court ruled that the definition of obscenity should be left up to local communities; Andrews's bill would have established statewide standards. "I think we should protect free speech," she said at a legislative hearing. "But I also think we should protect our young."

When it comes to constitutional liberties, there's always a "but" with people such as Andrews, whose bill was similar to a referendum question that had been rejected by Maine voters in 1986. Her anti-freedom agenda was exposed by one of her allies, Michael Heath, executive director of the Christian Civic League of Maine, who said at the same hearing, "While sex is a good, God-ordained human activity, lust is not." In Heath's world, it's okay to get it on as long as you don't enjoy it.

Andrews's proposal was not popular with her colleagues or with the media and public librarians, who feared they would be caught up in disputes over what's obscene and what isn't. Nevertheless, the measure was fascinating for what it revealed about the obsessions of Maine's religious right, which has managed to turn a generally tolerant state into a place where such common-sense measures as gay and lesbian rights are in constant peril.

Take, for instance, another of her allies, the Christian Coalition of Maine, which trudges on despite the virtual collapse of the national organization. Its Web site is chock full of pleas for members to write to their legislators in support of bills such as Andrews's, and to fight against measures such as a domestic-partner registry in Portland. "Say a loud `NO' to taxpayer funding of benefits for adultery, fornication, sodomy, and homosexuality," screams one admonition.

But there is an entertaining side to Andrews's anti-obscenity proposal. And that's where the six-dildo rule comes in. Among other things, the bill would regulate "obscene devices," which are defined as "a 3-dimensional object, such as a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Now, if you've got one, or two, or five, you're okay. But anyone who possesses "6 or more identical or similar obscene materials or devices is presumed to possess them with the intent to promote them." And that would be against the law.

The mind truly reels at the possibilities inherent in such a proposal. Would it be okay to possess, say, four manual dildos and four battery-powered models on the theory that they would slip in under the "identical or similar" rule? Would police hold a "Dildo Amnesty Day" so that folks could discard their excess sex toys without fear of arrest?

Not to worry: the Maine House killed the measure by a resounding margin of 103-41. But beware. Mary Black Andrews remains at large.

JOHN SILBER
Calls for silencing NAMBLA

The North American Man-Boy Love Association, or NAMBLA, exists to promote a bizarre, offensive, and harmful proposal: that age-of-consent laws outlawing sexual contact between adults and children be repealed.

In 1997, a 10-year-old Cambridge, Massachusetts boy named Jeffrey Curley was kidnapped, raped, and murdered by two monsters, Charles Jaynes and Salvatore Sicari, who lured him to their car by promising him a new bicycle. NAMBLA literature was found in Jaynes's possession.

The Curley family, in their unimaginable grief, filed a $200 million lawsuit against NAMBLA in US District Court, claiming that the organization -- in the words of one affidavit submitted in support of their case -- is "a quasi school for training its members on how to profile children, how to gain the confidence of children for the purpose of sex and how to have sex with children without detection by law enforcement or the children's parents."

But as ACLU of Massachusetts lawyer John Reinstein, who is assisting NAMBLA with its defense, put it, "I think it is fair to say that most people disagree with NAMBLA and that many would find its publications offensive. Regardless of whether people agree with or abhor NAMBLA's views, holding the organization responsible for crimes committed by others who read their materials would gravely endanger important First Amendment freedoms."

Certainly no one can blame the Curley family for seeking justice wherever they think they can find it. And no one can blame their lawyer, Lawrence Frisoli, who is simply doing his job.

But what can one make of Boston University chancellor John Silber? The former BU president spent his entire career in academia, where freedom of speech and of inquiry is a central part of the mission. Of course, veteran Silber-watchers would be the first to note that he never seemed to like academic freedom all that much, making life difficult for student journalists and putting up with little in the way of faculty dissent. And now that Silber is semi-retired, he can indulge his proclivity for censorship to his heart's content.

In an op-ed piece for the Boston Herald on June 1, Silber argued that the suit is justified on its merits. "Jeffrey's family is suing NAMBLA as contributors to the murder of their son," Silber wrote. "The ACLU says this is purely a question of free speech and association. Since the [NAMBLA] Web site provided information on how best to accomplish statutory rape, it is hard to see how this can be so. In making this argument, the ACLU has abandoned common sense. . . . A member of NAMBLA visited its Web site and then took part in the murder and rape of a 10-year-old child. Who would give such a group civil immunity from the consequences of its acts?"

Silber should know better. Perhaps someone should ask him whether Vladimir Nabokov's Lolita should be banned from literature courses at BU because someone might get the idea that it's okay for middle-aged professors to have sex with underage students. Or whether he would support a lawsuit against Amazon.com CEO Jeff Bezos for selling Ed Rosenthal's Marijuana Grower's Handbook, which offers step-by-step instructions on how to do something that could land you in prison for many years. And while we're at it, why not haul Ice-T in for all the police officers who've died since "Cop Killer" was released?

Freedom of expression was given constitutional protection because it's hard. It's especially difficult to defend the right of a group such as NAMBLA to push for the legalization of sex between adults and kids, and, worse, to offer tips.

But, after all, the First Amendment isn't needed for the easy cases. Silber apparently forgot that.

PAUL CELLUCCI
Ex-governor enters Hall of Shame

After having been dishonored with Muzzles in 1998 and 1999, the right honorable ambassador to Canada becomes our first three-time winner and thus the first inductee into our Hall of Shame. The former governor will not be eligible for future Muzzles on the theory that it's unfair to expect others to compete against someone with such an awe-inspiring record.

Cellucci's latest transgression against free speech took place last September. Change the Climate, a Greenfield, Massachusetts-based group that favors the decriminalization of marijuana, sought to place $25,000 worth of ads on the MBTA's buses, trains, and stations. One ad read, "Why do kids go to jail for doing what politicians did when they were young? Tell us the truth." Another: "I've got three great kids. I don't want them to smoke pot. . . . But I know jail is a lot more dangerous than smoking pot."

The T rejected the ads, despite their entirely political nature. "We have an obligation to our riders," MBTA spokesman Brian Pedro told the Associated Press. "In a subway car you can't change the channel." (Recycled-quote watch: this past March, when the T refused to run a racy ad for the movie Tomcats, Pedro told the AP: "We have a responsibility to our passengers. They can't change the channel if they are on a bus.")

After the pot-decriminalization ads were turned down, Change the Climate lawyer Harvey Schwartz, noting that the T had lost previous lawsuits challenging its retrograde advertising policies (as when a federal court ruled that its refusal to post the AIDS Action Committee's condom ads was unconstitutional), responded, "The MBTA is a public entity. It can't pick and choose which political beliefs it will support and not support." And he sued.

Enter Cellucci. Last September, the then-still-governor told the Boston Herald he was insisting that the MBTA hang tough, saying, "I'm not going to settle the case. I want them to fight. Why should a government entity be forced to put up a message that may be harmful to children? That's ridiculous."

Subway censorship wasn't Cellucci's only anti-free-speech action last year. Also in September, he refused to sign a bill that would have allowed condominium owners to fly flags even if their condo associations forbade it; Cellucci said he would be happy to protect Old Glory, but that was as far as he was willing to go. (You never know when someone might want to fly the hammer and sickle next to the hot tub.) Cellucci also insensitively whined that gay and lesbian advocates had "blown out of proportion" a proposal that thousands of state employees disclose whether they had ever been charged with any one of a range of sex-related crimes, including sodomy. (Earth to Cellucci: under Massachusetts's archaic laws, most forms of gay sex are decidedly illegal.) And Cellucci was a driving force behind a state constitutional amendment to ban prison inmates from voting, which is the subject of yet another Muzzle Award this year.

Fortunately for Cellucci, his political patron, George W. Bush, became president. And fortunately for Massachusetts, Cellucci left the scene, never again to suppress free speech here.

LISA MEAD
Buy a brick, get censored

Newburyport, Massachusetts officials had an inspired idea. In order to raise money to refurbish Woodman Park, people were given a chance to buy bricks for a walkway next to the children's playground. For $60 apiece, they could have their brick inscribed with anything they wanted.

Or so they thought.

The walkway was opened in September 2000 amid the customary celebratory hoo-hah. Within days, though, the city had received complaints. It seemed that two of the bricks did not conform to the norms of contemporary political correctness. One brick said JESUS LOVES YOU. Another: FOR ALL THE UNBORN CHILDREN. Obviously, neither message was bound to be wildly popular with everyone. Clearly, however, both were heartfelt expressions of opinion.

Newburyport mayor Lisa Mead could have used the occasion to send a message about tolerance and diversity of thought. Could have, but didn't. Her response was to have the bricks removed. "It's public property, and it's not a place for religious or political speech," Mead told the Boston Globe.

Imagine that. A space such as Woodman Park, like the sidewalks of the Back Bay, is the very definition of the public square, and the mayor of Newburyport doesn't want people using it to offer their opinions on politics or religion. What would Tom Paine say?

As it turned out, the brick inscribed FOR ALL THE UNBORN CHILDREN wasn't even intended to convey the anti-abortion-rights message that anti-free-speech zealots assumed. The brick had been bought and paid for by Marie Cupo, who was paying tribute to her daughter Marina, whom she lost late in pregnancy in 1997. "I was not suggesting any kind of political statement at all," Cupo, a member of the Friends of Woodman Park, told the Boston Herald. "It gave me pleasure to see my brick in the path." Not that there's anything wrong with political or religious messages. But it is cruelly ironic that a brick intended to honor a dead child was censored on the grounds that it appeared to convey a political message that some found offensive.

Even worse, Mead's actions ended up mobilizing the forces of the loathsome Pat Robertson, whose American Center for Law and Justice (ACLJ) -- intended as a religious-right counterpart to the ACLU -- filed suit in federal court on behalf of Cupo and Thomas Savastano, the man behind the JESUS LOVES YOU brick. ACLJ lawyer Ben Bull told the Globe, "The city didn't have to allow any private speech on these bricks, but once it did allow private expression, it cannot discriminate on the basis of popular or unpopular ideas."

Robertson tie-in or no, Bull got it exactly right. For Mayor Mead to invite residents to buy inscribed bricks and then decide which ones passed muster was reprehensible, and a clear violation of the letter and the spirit of the First Amendment.

WE THE PEOPLE
Denying prisoners the right to vote

The Federalist warns repeatedly and eloquently about the dangers of a democracy in which the majority simply votes to take away the rights, liberty, or property of the minority. Unfortunately, that is precisely what happened in Massachusetts last fall, when voters approved by a 64 percent margin an amendment to the state constitution that bars prison inmates from casting ballots.

Thus did Massachusetts join 47 other states, leaving only Maine and Vermont as enlightened enough to understand that even felons should not be stripped of all their political rights, and that voting helps prisoners stay connected to the communities they'll be rejoining upon their release.

In this instance, politicians were falling over themselves to take credit. Paul Cellucci had pushed hard for the measure when he was governor. So had House Republican leader Fran Marini, the chief sponsor of the referendum. It passed overwhelmingly each time it came up in the legislature for a vote, winning by 155 to 34 in 1998 and by 144 to 45 in 2000.

In the end, though, it is the voters themselves -- We the People -- who must take responsibility for this regressive step. The amendment wouldn't have taken effect without the support of the public. And it obviously had that support, winning "yes" votes from more than 1.6 million of us.

To be sure, Massachusetts remains more progressive than many states. In April of this year, Connecticut officials approved legislation to restore voting rights to felons who are serving probation, a right that has not come under threat in Massachusetts. Then, too, some states permanently bar felons from voting, even after their sentences and probation have been served, which effectively disenfranchises many in the African-American community. Look at Florida, where the US Commission on Civil Rights found that an effort to purge felons from the voting rolls was so botched that many eligible voters were turned away on Election Day.

Still, Massachusetts's reputation for enlightened, progressive politics took a hit when the last vestiges of democracy were removed from inside the prison walls. As Harvard Law School professor Charles J. Ogletree Jr. wrote in an op-ed piece for the Boston Herald, "If passed, this will be the first time in our history that we have amended the Constitution to restrict, rather than to expand fundamental rights. . . . Society expects prisoners to reform and become model citizens but this measure denies them the means to participate. . . . This measure is mean-spirited, ill-considered, repressive and regressive."

It is also, as Ogletree noted, unnecessary. Some 20 years ago the state's Supreme Judicial Court took care of the biggest potential problem, ordering that inmates vote by absentee ballot provided by their hometowns -- thus preventing, say, MCI-Cedar Junction inmates from wielding the balance of power in Walpole town politics.

"Since approximately 97 percent of those incarcerated are eventually released, it is in the public's best interest for released offenders to know how to intelligently and appropriately have a voice in their communities," Ogletree wrote.

For more than 200 years, the state constitution, written in large measure by the suddenly fashionable John Adams, incorporated the enlightened approach espoused by Ogletree. It's hard to imagine a more insulting monument to Adams than banning people from exercising their democratic rights.

JAMES WRIGHT
Overreacts to crude frat prank

The brothers of the Dartmouth College fraternity Zeta Psi did not cover themselves in glory when they published two sophomoric, sexist newsletters, the Zetemouth and the Sigma Report.

Written in the breathless prose of young men who drink a lot of beer and can't get laid, they include passages such as this caption beneath a picture of a topless woman, purportedly photographed in Cancun, Mexico, as reported in the student newspaper the Dartmouth: "No, it's not [Brother X's] girlfriend ([Female student]'s tits are too small), [Brother Y]'s sister (too round) or even [Brother Z]'s Cancun hookup (not old enough to have tits). Yup, it's just another Cancun chick faced with the easy choice of either flashing hundreds of strangers or spending the night with [Brother A]."

Then there's this particularly incendiary line: "Next week: [Brother X]'s patented date rape techniques!"

What came to be known as the "sex papers" demonstrated that Bluto Blutarsky is alive and well at Dartmouth. But that should have been the end of it. It wasn't. At Dartmouth, you see, boorishness isn't just offensive, it's an actual offense -- the kind that can get a fraternity shut down and thrown off campus.

The newsletters, which were never meant to be circulated outside the frat house, were discovered in April, reportedly by a female student rummaging through Zeta Psi's trash. The fraternity's national executive committee placed the Dartmouth chapter on probation.

That wasn't enough for Dartmouth officials. In May, Zeta Psi was "derecognized" -- that is, it was permanently dismantled at Dartmouth, having been found "guilty" of harassment and of two violations of the college's "minimum standards" requirements. The college's dean, James Larimore, wrote an open letter that was like something out of 1984, saying in part: "Since the allegations against Zeta Psi surfaced, there has been considerable discussion on campus of issues of freedom of expression. Some argue that anything that an organization can characterize as expressive conduct must be tolerated even though it violates the rules and standards of our community. . . . I respectfully disagree with that view, which I believe is corrosive of the very idea of a residential college." Clearly Larimore's idea of a residential college does not include the First Amendment.

The buck, though, stopped with Dartmouth College president James Wright -- and he, rather than overruling Larimore and upholding the fraternity's free-speech rights, piled on, writing, "Zeta Psi undermined fundamental values we hold dear. When such conduct violates our standards, the College must take action."

The kind of idiotic speech Zeta Psi engaged in doesn't have to be exalted. Protests, letters to the Dartmouth, and demands for an apology all would have been appropriate. The brothers might have learned a lesson.

As it is, they have learned a lesson: that Dartmouth College values political correctness more than it does freedom of expression. It is, needless to say, the wrong lesson -- not just for the brothers, but for everyone else on campus as well.

US COURT OF APPEALS FOR THE FIRST CIRCUIT
Tells judge to shut up

US District Court judge Nancy Gertner wanted to correct what she believed to be a mischaracterization of her actions in an important case appearing before her: a complicated lawsuit brought by the parents of 10 white students who were seeking to end race-based admissions in the Boston Public Schools.

The parents' lawyer, Chester Darling, had told the Boston Herald that Gertner had rejected his bid to expand the suit into a class action covering all white students. The Herald also reported that Darling had filed a motion asserting "that Gertner allowed a similar class-action suit to be brought against Suffolk County by women who claimed they were illegally strip-searched at the jail."

What irked Gertner was that she had yet to rule one way or the other on the class-action issue. So on July 28 of last year she wrote a letter to the Herald saying, "I did not refuse to hear arguments on the case. I did not refuse to schedule a hearing. Just the opposite." The hearing, she explained, would take place in September. Then, in a follow-up article published by the Herald on August 4, Gertner elaborated on Darling's comparison to the Suffolk County case, saying, "It was absolutely clear every woman had a claim. This [the school-admissions suit] is a more complex case."

Darling, believing Gertner had spoken out of turn, asked the US Court of Appeals for the First Circuit to remove her from his case. And the appeals court -- despite finding that Gertner had demonstrated no bias -- sided with Darling, ruling on February 5 that Gertner had created "an appearance of partiality," even though she "understood her own comments as entirely ethical explanations of the reasons behind court procedures."

Through its action, the appeals court managed to pull tighter the veil of secrecy that already surrounds our most mysterious branch of government. "I'm really worried by this code of silence that the judiciary tries to impose upon its members," Paul McMasters, First Amendment ombudsman for the Freedom Forum, told the Phoenix. "The whole judicial system is closing more and more upon itself. It's not just the public's right to know that's damaged, but the stature and status of the judicial system itself."

Federal judges do not have a First Amendment right to speak out -- free speech, sadly, does not extend to the workplace, and Gertner's superiors can decide what is appropriate speech and what isn't. But muzzling judges except within the confines of the courtroom, says civil-liberties lawyer Harvey Silverglate (a Phoenix contributor and former law partner of Gertner's), contributes to the perception that judges constitute a "priestly caste."

That can harm public confidence in the judiciary. Witness the ongoing saga of Massachusetts Superior Court judge Maria Lopez, who was excoriated last fall after she chewed out a prosecutor and handed a light sentence to a convicted child molester. (Disclosure: Lopez is the wife of Phoenix publisher Stephen Mindich.) Lopez is now being investigated to determine whether she improperly passed on to supporters information about the molester's victim. All this could have been avoided if the rules had simply allowed her to explain her reasoning in public.

In the Gertner case, it's the appeals court's very solicitude that is so chilling. No, the court ruled, she did not show any bias in writing and speaking to the Herald. Nor did she do anything that she believed was improper or unethical. But she was punished anyway.

Gertner's letter to the Herald said in part: "I am always available to speak to the press. I strongly believe that what we do as courts and judges must be accessible to the public."

Not anymore.

Dan Kennedy can be reached at dkennedy[a]phx.com.