To update that bogus old Ronald Reagan commercial, it's mourning in America. We are at war, and in times of national crisis, too many of us find it too easy to dismiss freedom of speech as a superfluous luxury. Thus the fifth annual Muzzle Awards, which single out 10 enemies of free speech and personal liberties in New England, come at a troubled moment.

On June 16, the Washington Post published an astounding commentary by Dennis Pluchinsky, a counterterrorism expert for the State Department. It began, "I accuse the media in the United States of treason." Why? Because the media have been doing what they're supposed to do: aggressively reporting on security risks in the aftermath of September 11.

"In a war situation, it is not business as usual," Pluchinsky wrote. "Use some common sense. Certainly, if a reporter or academician believes that he or she has discovered a vulnerability or flaw in one of our sectors or systems, it is important to let others know. It seems reasonable to me that a process should be established where such articles are filtered through a government agency such as the proposed Department of Homeland Security. A skeptic would call this censorship; a patriot would call it cooperation."

As Samuel Johnson observed, "Patriotism is the last refuge of a scoundrel." Our society thrives on the free and open exchange of ideas. Filter investigative reporting through some Ministry of Information, and it's no more likely to be taken seriously than any of the numerous warnings that the CIA and the FBI ignored before last September 11.

Fortunately, to date there have been more portents of oppression than actual oppression. The USA Patriot Act, a cornucopia of Johnsonian ironies, threatens to encroach on free speech and personal liberties. But according to a June 23 report in the Boston Globe, it has been used sparingly so far. The most notorious application of the Patriot Act has been in the case of Jose Padilla, the so-called dirty-bomb suspect, who has been jailed without being charged -- an action of dubious constitutionality.

Two of this year's Muzzle Award winners have a September 11 tie-in. And, in a reflection of what is occurring nationally, the relevant incidents don't signal the arrival of out-and-out authoritarianism so much as they engender a sense of foreboding.

One involved a young, turban-wearing Sikh engineer who was arrested on a train in Providence on September 12 and charged with illegally carrying a knife. It turned out to be a small, ceremonial religious dagger, yet Providence police dawdled more than a month before dropping charges.

The other was Maine governor Angus King's decision to invite just a handful of
reporters, and no members of the public,
to a homeland-security conference. King eventually relented and opened it to the media, but the public -- in whose name the conference was being held -- was kept at bay.

This year's Fourth of July round-up was compiled by consulting noted civil-liberties lawyer and Phoenix contributor Harvey Silverglate and the ACLU offices in Boston, Providence, and Portland, and by closely tracking freedom-of-expression stories in New England since last July Fourth. It is based mainly on stories reported by various New England news outlets, including the Phoenix.

Finally, a bow to the Thomas Jefferson Center for the Protection of Free Expression, which has been dishonoring national enemies of the First Amendment with its "Jefferson Muzzle" awards for the past 11 years. The center can be found on the Web at www.tjcenter.org.

MASSACHUSETTS DEPARTMENT OF CORRECTION
Silencing inmates by keeping the media out

Few of us waste much time thinking about the plight of those who have been sent to prison. Most inmates, after all, are behind bars because they committed serious crimes. It's easy to tell yourself that once they've been locked up, they have no right to be heard from until after they've done their time.

Easy, but wrong.

Depriving people of their freedom is the most awesome power exercised under state law, at least in this part of the country. (In New England, only New Hampshire and Connecticut have the death penalty. The last New England execution took place in 1960, in Connecticut.) With power must come accountability. And accountability is impossible without tough, independent scrutiny.

Apparently that's the last thing the Massachusetts Department of Correction wants. This spring, the DOC unveiled proposed new rules that would drastically restrict journalists' access to prison inmates.

The rules appear to violate the First Amendment's guarantee of freedom of the press, since they would deny reporters rights granted to ordinary citizens. For instance, friends and relatives may visit a prisoner who is in a segregation unit; if the DOC gets its way, however, a reporter could not. Prison officials also do not listen in on conversations between an inmate and an ordinary visitor, but media interviews would be monitored. Tape recorders and cameras would be banned, and so, reportedly, would telephone interviews.

The rules appear to be designed solely to protect prison officials from public scrutiny. Prisons, after all, are violent, brutal places, and the jail keepers don't necessarily want us to know what we're getting for the more than $400 million in tax money we give to them each year.

In a June 12 piece on WBUR Radio (90.9 FM), documentary filmmaker Ofra Bikel -- whose work for programs such as PBS's Frontline has resulted in freedom for 11 wrongly convicted ex-prisoners -- told reporter Jason Beaubien that she never could have uncovered such injustices if she'd been subject to the proposed DOC guidelines. An ACLU official told Beaubien that, in Wisconsin, a newspaper was able to photograph and interview a mentally ill juvenile who was being held in a hellish segregation unit -- a story that persuaded a judge to order reforms. If Massachusetts prison officials get their way, such enterprising journalism will not take place here. In a recent interview with the Phoenix, Beaubien said, "Officials make it incredibly difficult to cover prisons. The Boston media has been beaten down by the lack of access and the process."

The proposed rules are just the latest attempt by the Department of Correction to dehumanize its prisoners and cut them off from the outside world. In May, for instance, the Boston Globe reported that inmates at Norfolk state prison have been banned from posting newspaper and magazine clippings on their cell walls -- even New Yorker cartoons -- thus prompting a First Amendment lawsuit. Such petty sadism is wrongheaded. Nearly all inmates will eventually return to society. Prison officials should be preparing them for the outside world -- not engaging in gratuitous psychological abuse, and then preventing them from getting word out through the media.

A recent statement by Massachusetts Correctional Legal Services, which
represents prisoners, warned of the dangers of an unaccountable prison system: "If there is any one civics lesson to be gleaned from the last 40 years of American life, it is that when government agencies shut out public scrutiny of their activities, bad news about those activities inevitably follows."

The statement also voiced some well-
deserved criticism of the media for their lack of interest in prison stories. That complacency will only become more pronounced if editors and news directors find that it's just too hard to get their reporters inside prison walls.

RICHARD SULLIVAN, PROVIDENCE POLICE CHIEF
Slow to drop charges

Last September 12, Americans were frightened, horrified, and ready to lash out at anyone who looked or acted different. It wasn't admirable, but it was, under the circumstances, understandable.

That afternoon, a young engineer named Sher Singh was hauled off an Amtrak train in Providence, handcuffed, and charged with illegally carrying a small knife -- a ceremonial symbol of his Sikh religion. No, it shouldn't have happened, and yes, the dark-skinned, turbaned Singh was a victim of ethnic profiling. Realistically, though, it was a miracle that he wasn't torn apart by his enraged and panic-stricken fellow passengers.

But if there is at least some excuse for the way Providence police handled the situation on that day, there is absolutely no justification for their taking until October 25 to drop the charges against Singh -- and for doing so only after state attorney general Sheldon Whitehouse wrote a letter to city officials saying that he would refuse to pursue the case if it reached his office.

There is plenty of blame to go around. A little more than a week before the charges were dropped, the city's extremely honest mayor, Buddy Cianci, was quoted as saying, "The fact is that he was in violation of state law." But a mayor's job is to posture and fulminate, not immerse himself in the details. The city official most accountable for Sher Singh's ordeal is Providence police chief Richard Sullivan. The chief knew within hours of the arrest that Singh was no threat to anyone. Yet he let the possibility of a one-year prison sentence hang over Singh's head for seven long weeks.

Singh was carrying a kirpan, a dagger that all Sikh men carry as a religious obligation. As Singh explained to the Providence Journal, the kirpan is "a symbol of our connection to God." Though it shouldn't matter, it is notable that Singh, who was 29 at the time of his arrest, is neither an Arab nor a Muslim, the two groups singled out for suspicion after the terrorist attacks of September 11. He was on his way back to his home in Virginia after visiting his wife at Tufts University.

The facts of the case cried out for the charges to be dropped as swiftly as possible, but Sullivan's attitude was: the facts be damned. As Rhode Island ACLU executive director Steve Brown said in a letter to the city dated October 16, more than a month after Singh's arrest, "Absolutely no public interest is served by prosecuting Mr. Singh for what, ultimately, is the `crime' of practicing his religion. Therefore, in the interests of justice, we urge you to have the charge against Mr. Singh dismissed. Only in this way can the City end the nightmare that he has experienced, a nightmare brought on solely because of his appearance and the color of his skin."

Singh himself responded to his ordeal with equanimity. After the charges were dropped, he was quoted in the Journal as saying, "What the police did was justified. I feel America is a nation of brave and intelligent people, and I feel we have all acted that way." He added, "God bless America."

No doubt Singh was relieved that justice had finally been done. If Chief Sullivan had gotten his way, Singh might still be waiting -- behind bars.

MARTY MEEHAN
Campaign-finance reform punishes free speech

The past year has been a good one for Congressman Marty Meehan. First, the Lowell Democrat survived an attempt by Massachusetts House Speaker Tom Finneran to redistrict him into oblivion. Then, a cause he had championed for years -- campaign-finance reform -- finally became law. At long last, the barely regulated soft-money contributions through which special interests wield so much clout will become a thing of the past.

But even as Meehan takes a bow, he also deserves criticism for a grossly unconstitutional provision of the new law. Incredibly, corporations and unions are now prohibited from buying airtime to broadcast television commercials that name a candidate 60 days before a general election and 30 days before a primary. And by "corporation," the law does not just mean Microsoft or General Electric -- it also applies to nonprofit advocacy groups ranging from the Sierra Club to the National Right to Life Committee (the latter is a plaintiff in an ACLU lawsuit to overturn the provision). As several critics have pointed out, the law is so pernicious that it would actually be a crime to buy a TV commercial criticizing Meehan's role in drafting it if the commercial were to run within one of the forbidden time periods.

It's not that Meehan did anything uniquely wrong. The provision to ban "phony-issue ads," as they are invariably called, was widely supported. Indeed, the Senate version of the ban was pushed hardest by two New England senators, Maine Republican Olympia Snowe and Vermont independent Jim Jeffords. Meehan's co-sponsor was Congressman Chris Shays, a Connecticut Republican. But except for Senate sponsors John McCain and Russ Feingold, no one worked more diligently or logged more TV face time than Meehan.

Thanks to loopholes, the actual effect of the issue-ad ban may not be as sweeping as intended. The ban does not apply to unincorporated individuals or groups. And according to Slate's Mickey Kaus, even corporations and unions may find it relatively painless to set up unincorporated branches to solicit donations and broadcast as many "phony-issue ads" as they like.

But the intent of the law is to chill free expression. If corporations and unions find a way to get their message out, it will be due only to the ineptitude of the speech commissars on Capitol Hill. Writing in the National Journal last September, the respected legal analyst Stuart Taylor called the provision "a frontal attack on the rights of ordinary citizens to band together to express their views on legislative and political issues," adding: "A greater affront to the First Amendment's core purpose of protecting uninhibited, robust and wide-open criticism of government and government officials could scarcely be imagined."

First Amendment lawyer Floyd Abrams, who is assisting Republican senator Mitch McConnell of Kentucky in his efforts to overturn the law, wrote an op-ed piece for the Wall Street Journal in March in which he asked disgustedly: "[H]ow can criminalization of speech about public affairs possibly be justified?"

Actually, the justification is logical enough. If you limit politicians' ability to raise money and purchase airtime, then, as an unintended consequence, you've given greater opportunity to outside groups to broadcast commercials that say, Call Senator X today and tell him to stop torturing puppies. But Marty Meehan's solution -- to take away the free-speech rights of those outside groups -- does not pass constitutional muster. It will be overturned -- eventually. And Meehan surely knows that.

In the meantime, Meehan ought to consider the psychic cost of limiting political speech -- even in the form of "phony-issue ads" -- in an open society.

Illustrations by Rob Zammarchi

ANGUS KING
Maine governor bars public from security conference

According to Maine governor Angus King, homeland security is very, very important -- so important, in fact, that mere citizens have no right to know how their government intends to protect them.

That was the message, at least, of an unusual invitation that King sent out in late April. He asked 70 to 80 Mainers to attend a four-day conference to "develop the blueprint to secure Maine and its citizens from the threat of terrorist attack." He added: "I cannot overly stress the importance of this undertaking." But only a handful of reporters got the nod, and they were told they would be allowed to cover only a few sessions. Only two legislative leaders were invited. Even worse, King and other officials made it clear that they didn't want any members of the public to show up.

According to a report by Maine's Capital News Service, conference organizer Colonel Mark Gilbert of the Maine National Guard justified the silent treatment by saying, "We did not want the participants to feel encumbered in making their inputs. Let's be honest, that would happen if the media were there." Obviously Governor King was on board with that sentiment, since it was he who issued the invitations.

King's closed-door policy came under immediate attack. House majority leader Patrick Colwell, a Gardiner Democrat who did not get an invitation, told Capital News Service, "I have to say I have some concerns about this. There might be some areas of security that should not be discussed in public, but I think we are talking about developing broad public policy here, and that should involve the public."

The Maine Freedom of Information Coalition protested, with coalition member and Maine Public Radio announcer Irwin Gratz telling the Portland Press Herald, "It's patently ridiculous. It's a dangerous precedent when you're making public policy behind closed doors."

An editorial in the Lewiston Sun Journal observed, "Anyone who holds democracy dear should be outraged by government's obvious lack of confidence in the people's ability to participate in thoughtful discussion about our own security." And it asked a pertinent question: "What are they thinking?"

The answer, apparently, is that King, Gilbert, et al. weren't thinking at all. Because within a few days they backed down -- to a point. The entire four-day conference was opened to all accredited members of the media, although the public was still barred. Major General Joseph Tinkham II, the state's adjutant general, was trotted out to announce the change of heart and to blame it all on the gosh-darn difficulties of holding such a conference at the National Guard base in Bangor.

"The only reason we were closing it to the press was because of logistics," Tinkham reportedly said. "The media is welcome to cover the conference. We just have to put some mechanics in place to escort them onto the base." Those logistics, he added, made it impossible to allow the public to attend.

Well, isn't that convenient. Meanwhile, here's some advice for Governor King: next time, hold the conference at a place where everyone will be welcome.

Illustrations by Rob Zammarchi

MASSACHUSETTS SUPREME JUDICIAL COURT
Privacy for cops, but not for private citizens

Eleven years ago, an amateur videotape of Rodney King being beaten by Los Angeles cops touched off a national debate over police brutality.

One year ago, the Massachusetts Supreme Judicial Court issued a ruling that said in effect, We'll have none of that here, thank you very much.

In a decision issued last July, the SJC ruled that Michael Hyde had broken the law when he audiotaped four Abington cops during a traffic stop in 1998. The officers verbally abused Hyde and used vulgarities; later, Hyde brought the tape to the Abington police station to file a complaint. Incredibly, he found himself charged with illegally violating the cops' privacy. The justification was that Hyde had broken a 1968 law governing police wiretaps. But the effect was to make it more difficult for citizens to protect themselves against out-of-control cops. Both the Boston Globe and the Boston Herald editorialized against the decision.

Chief Justice Margaret Marshall got it right in her dissent, saying, "We hold police officers to a higher standard of conduct than other public employees, and their privacy interests are concomitantly reduced. . . . It is the recognition of the potential for abuse of power that has caused our society, and law enforcement leadership, to insist that citizens have the right to demand the most of those who hold such awesome powers."

Nearly a year after demonstrating perverse solicitude for the privacy rights of public servants performing their public duties, the SJC stood logic on its head once again -- this time ordering a private citizen to turn over his private e-mails to assist officials who were investigating his wife.

In March, Phoenix publisher Stephen Mindich was told to comply with a subpoena demanding that he turn over his e-mails so that investigators could determine whether his wife, Superior Court judge Maria Lopez, engaged in an improper "whispering campaign" to discredit the victim of Charles "Ebony" Horton. (Ironically, when formal charges against Lopez were ultimately issued in May, none addressed the "whispering campaign.") The full court's March ruling affirmed a decision by SJC associate justice Francis Spina last October that not only ordered Mindich to turn over his e-mail to the court, but shrouded all court documents related to the matter in secrecy. (The background: in September 2000, Lopez handed Horton a controversially lenient sentence of probation and home detention for attempting to rape a 12-year-old boy. The case became a cause célèbre, in part because television cameras caught Lopez angrily berating the prosecutor.)

"The fact that the government is being given the green light to peruse the private e-mail of one of our fellow citizens should have prompted a storm of outrage, no matter what we may feel about Judge Lopez's behavior or that of her husband," the Boston Herald's legal-affairs columnist, Maggie Mulvihill, wrote of Spina's ruling.

And in its April 1 issue, the Weekly Standard published an essay on the case by George Mason University law professor Peter Berkowitz that began, "Free speech, fair process, and judicial independence are under assault in Massachusetts." Berkowitz was particularly incensed by Spina's decision -- again, affirmed by the full SJC -- to seal all papers in the dispute over Mindich's e-mails, even those pertaining to whether the papers themselves should have been sealed.

"In fact, there seems to be only one party that benefits -- or might conceive itself as benefiting -- from secrecy in the case of Stephen Mindich's Supreme Judicial Court challenge, and that is the Supreme Judicial Court," Berkowitz wrote, adding: "Precisely in a case where the court is most in need of public accountability it has evaded that accountability."

After having earlier vowed to appeal to the US Supreme Court, Mindich last week turned over the e-mails rather than be held in contempt. In a written statement, Mindich said there was only a "minuscule" chance that the Supreme Court would hear his case, adding: "Consequently, I now find myself with no practical choice except to obey a patently unconstitutional order. There is nothing in my e-mails of which I and my correspondents are ashamed, nor have I said anything false about the persecution of my wife."

Illustrations by Rob Zammarchi

GRETA HOLMAN, PROVINCETOWN OFFICIAL
Has a thing for Naked Boys

Provincetown licensing agent Greta Holman is not an incorrigible bluenose. When she received a complaint from a man last summer who was offended by the full frontal nudity in the musical Naked Boys Singing, she told Bay Windows that she asked him, logically enough, why he'd attended in the first place. And she never seriously tried to shut down the gay revue -- which features, among other things, songs about circumcision and the embarrassment of getting an erection in the locker room.

Holman did, however, pursue an anti-First Amendment battle against the show all last summer, entangling the Crown & Anchor -- the hotel-and-restaurant complex where Naked Boys Singing was appearing -- in a licensing and zoning mess that has yet to be completely straightened out.

Holman cited the Crown & Anchor for violating the town's adult-entertainment ordinance by not applying for a special license. She reportedly issued more than 30 tickets to the Crown, at $100 a pop, for continuing to show Naked Boys Singing.

At the same time, though, Holman said the Crown couldn't obtain such a license even if it applied, since it would run afoul of a state law forbidding adult entertainment within 500 feet of a church -- in this case, the Unitarian Universalist Meeting House. Yet Bay Windows noted that the minister of that church, the Reverend Alison Hyder, had written a letter to Holman and other town officials saying that she found Naked Boys Singing to be "charming and enjoyable." Hyder added that Holman's repeated cease-and-desist orders "infringe on the freedom of speech and personal expression that we hold dear."

In the end, the Provincetown Licensing Board backed down, voting in early September to drop its case against the Crown & Anchor, and to take no action to force the Crown to pay all those $30 tickets. But it's not over. In April, Provincetown town-meeting members voted to uphold a local ordinance regulating live nude entertainment. And last month, the Provincetown Banner reported that Crown co-owner Bill Dougal had resigned his position on the town's finance committee so that he could file a lawsuit against the town seeking to invalidate that ordinance.

The battle flies in the face of Provincetown's reputation as a progressive, gay-friendly haven. As Ben Winters wrote in a piece for In These Times last October: "There [is], alas, no shortage of municipalities in the United States where the citizenry might be expected to revolt if confronted with an all-nude, all-gay musical revue in their midst. Topeka, Kansas, let's say, and probably Salt Lake City, and wherever Trent Lott is from. But Provincetown, Massachusetts?"

Of course, in Provincetown it wasn't the citizenry that revolted -- just Greta Holman and a few other officious types. But that's all it took to stain the town's reputation.

Illustrations by Rob Zammarchi

BIDDEFORD CITY COUNCIL
Pulling the plug on public-access cable

The truth of the matter is that Dorothy Lafortune sounds like a piece of work. In a Portland Press Herald profile, Lafortune comes off as someone who believes the world is out to get her. She's had a lot of problems, both business and personal -- and, according to her, it's always been someone else's fault: Biddeford city officials, bankers, even a local postman whom she accuses of delaying her mail.

"There has been a criminal network in Maine going on for some time, and I realized it 10 years ago," she told the paper. "If this doesn't stop, people are going to find themselves in a very bad situation, and this is not a conspiracy theory I have in my mind."

Now, at this point, a smart reporter caught in the same room with a source such as Lafortune will start looking at the door and mumbling about having to get back to the office. But Lafortune has a right to air her views. And that's exactly what she used to do on Biddeford's public-access cable channel -- until last year.

The offending episode of Lafortune's Maine Forum was broadcast last July. Lafortune alleged that she and her mother, who'd lost her home in a foreclosure, had been victimized by officials from "the local level all the way up." City councilors -- fearing, they claimed, that they might be opening the city to legal liability -- yanked her show off the air. The Maine ACLU sued, and a federal magistrate found that the city had violated Lafortune's free-speech rights. So in May, the council went one step further, shutting down the public-access channel until it can draft comprehensive regulations.

But there's more -- much more. It appears that the Biddeford councilors are profoundly unhappy with free speech. Last fall, Councilor Jim Gratello demanded that his then-colleague, Richard Rhames, resign after Rhames criticized US sanctions against Iraq -- and claimed that "we all have blood on our hands" -- at a post-September 11 vigil. Rhames himself, whose own appearances on cable have riled some of the more conservative flag-waving elements, is a party to the legal action regarding public access, demanding that the channel be restored. Federal judge Brock Hornby turned Rhames down, but also made it clear that the channel must be put back on the air sooner rather than later, and that the regulations the council eventually unveils must be "content-neutral." (Good luck: Gratello has said that public access "is a privilege, not a right." Perhaps he also favors licensing soapboxes, lest they be used as speaking platforms on the city common by irresponsible persons who don't understand they're enjoying a privilege, not a right.)

City officials also went ballistic and demanded an apology when the student newspaper at the nearby University of New England published a sophomoric column by a sophomore calling Biddeford a "trash-burning, blue-collar, cop-crazed, run-down mill town with nothing more to offer than a Wal-Mart, Shop 'n Save and good fast food." According to a column by the Press Herald's Jack Beaudoin, the city's bullying ways resulted in not one but two apologies -- one from the student, the other from university president Sandra Featherman. Of course, the councilors had a right to voice their objections, but by directing their ire at an institution that depends on the city for everything from its tax status to development plans, they crossed the line into the sort of intimidation that chills free speech.

Apparently it never occurred to the councilors that they should simply let their critics rant, whether it be on public-access cable or in the local campus paper. That's the mature -- and constitutional -- thing to do.

Illustrations by Rob Zammarchi

MASSACHUSETTS DEPARTMENT OF EDUCATION
MCAS critic disinvited
from school conference

There's something about pure, unmitigated brazenness that makes you pause in admiration.

There's something about the Massachusetts Department of Education.

In May 2001, noted educator Alfie Kohn was asked to give the keynote address at a conference in Northampton organized by charter- and public-school officials, as well as educators from several colleges, including Smith, Mount Holyoke, and UMass. Kohn -- an outspoken opponent of high-stakes tests such as the notorious MCAS exam -- was asked to speak on "The Case Against Standardized Testing: Raising the Scores, Ruining the Schools."

That happens to be the title of one of Kohn's books. And it apparently raised the hackles of Department of Education officials, who were afraid that Kohn was going to enter their lair and denounce their cherished MCAS. So they threatened to withhold federal grant money from the conference unless Kohn was disinvited. Critic silenced. Problem solved.

Until December, that is, when the ACLU of Massachusetts filed a First Amendment lawsuit against the department -- and this rather astounding example of government censorship became public knowledge.

The Department of Education, naturally, claims the disinvitation had nothing to do with censorship. "It was a charter-school conference put together especially to be a platform for charter schools to share ideas with traditional public schools," department spokeswoman Heidi Perlman told the Boston Globe. "He has the right to say or believe whatever he wants, but at that conference it wasn't appropriate."

But lawyer Michael Albert, who's handling the case for the ACLU on behalf of Kohn and several other plaintiffs, calls that claim "ridiculous." In an e-mail to Muzzle Central, Albert said that "other speakers at the conference spoke about the same topic (testing and assessment), without any challenge or objection from DOE. Besides, 'assessment' was one of the topics that the organizers of the conference specifically chose to cover -- again with no objection from DOE until someone . . . learned that Alfie would be speaking."

Here's just a sample of what state officials didn't want local educators to hear, taken from Kohn's Web site, AlfieKohn.org: "A plague has been sweeping through American schools, wiping out the most innovative instruction and beating down some of the best teachers and administrators. Ironically, that plague has been unleashed in the name of
improving schools. Invoking such terms as 'tougher standards,' 'accountability,' and 'raising the bar,' people with little understanding of how children learn have imposed a heavy-handed, top-down, test-driven version of school reform that is lowering the quality of education in this country."

The Weld, Cellucci, and Swift administrations have made the MCAS a centerpiece of their education-reform agenda, despite research showing that high-stakes testing is, at best, an imperfect tool.

By moving so boldly to silence their critics, Department of Education officials look weak and foolish. Worse, they have revealed themselves as censors willing to trample on the First Amendment rather than tolerate dissent.

Illustrations by Rob Zammarchi

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Proposed rules lack photosensitivity

A man approaches a young girl on a state-owned beach. Stubble-faced, slightly sweaty, trying to act more calm than he really is, he shows the child his camera -- and asks her to take off her clothes.

Fortunately, this girl knows her rights. "Do you have a permit from the Rhode Island Department of Environmental Management? And how about a release form?" she demands.

Foiled! He slinks off -- only to be taken into custody when the girl reports him to a nearby DEM officer.

Last fall, the Rhode Island Department of Environmental Management (DEM) proposed a rule that would regulate the activities of commercial photographers on state land. Henceforth, such photographers would be required to obtain a permit before taking pictures at DEM-managed parks, beaches, and other facilities. And the photographers would also have to get a signed release from all recognizable people in their pictures.

Among the goals, DEM spokeswoman Stephanie Powell told the Providence Journal, was to give law-enforcement officials the tools they needed to prevent pedophiles from photographing children near outdoor showers and bathhouses.

But how could that be? Absent the regulation, have police officers been constrained from taking action against dirty old men who wield cameras while asking young children to strike lewd and lascivious poses? Even with the regulation, what would happen if a photographer promised a cop that the nude photos he was taking of an eight-year-old boy would not be used for commercial purposes? "Sorry -- carry on," perhaps? Uh, not likely.

There doesn't appear to be any ulterior motive behind the DEM's proposal. Rather, it seems to have been merely a weird moment of bureaucratic insanity. At a hearing in November, the Rhode Island ACLU and the Providence Journal Company spoke out against the proposal. According to the Journal's account, attorney Raymond Marcaccio told the agency he was worried that the regulation would be applied to news photographers who arrived on state property to shoot breaking news such as a boating accident or an oil spill, or even just a feature photo of families at the beach. Powell responded that it had never been the DEM's intention to regulate the activities of news photographers. Well, duh.

The proposal was quickly dropped, and something good even came out of it: it emerged that the DEM, unbeknownst to its own officials, already had a rule on its books prohibiting commercial photographers from shooting on state land without permission. That rule was repealed, which means the First Amendment was actually in slightly better shape after this little fiasco than before.

Nevertheless, the episode shows why free speech can't survive without constant vigilance. You never know when someone, somewhere is going to come up with some nutty idea to take away our rights.

Illustrations by Rob Zammarchi

JAMES GALLAGHER
Worcester police chief tells protesters, "Smile"

It's not entirely fair to single out Worcester police chief James Gallagher for the department's policy of taking surveillance photos at peaceful demonstrations. After all, the practice dates back at least to 1970, and Gallagher has been chief for only a short time. And it was he who announced recently that his officers would stop the practice, more or less. But his previous defense of the policy was so mindless -- and his so-called reversal is so dubious -- that Gallagher has earned the coveted Muzzle.

The surveillance came to light last fall, when Worcester Magazine published a photo of an undercover police photographer at a peace demonstration, camera at the ready and gun by her side. Reportedly, she had been taking close-ups of demonstrators just moments before without revealing who she was or what she was doing; the protesters themselves figured she was with either the media or an antiwar organization until she ambled over to a police vehicle. At that point, a protester quickly snapped her picture. Incredibly, the police defended the policy in subsequent coverage in the Worcester Telegram & Gazette.

The blue wall of denial was still in place in March, when the Phoenix's Kristen Lombardi interviewed Gallagher about the practice. Lombardi wrote of Gallagher: "When asked whether good police work calls for photographing peaceful, law-abiding protesters, he responds, 'Absolutely.' When pressed to elaborate, the chief falls back on the just-in-case rationale: 'The police use it to be ahead of the curve.' Asked whether that means that people who exercise First Amendment rights are more likely to fall into criminal behavior, he replies, 'No, not necessarily.' So why is such surveillance necessary, then? 'It just is,' Gallagher insists."

If anything, police-union president Richard Cipro's comments to Lombardi were even more troubling. "If you're not involved in any illegal activity, you have nothing to worry about with this practice," he said. That rationale, of course, could be used to justify anything from letting the State Police tap your telephone to inviting the FBI to read your e-mail. As the legendary retired radio talk-show host Jerry Williams used to say, we've got everything to hide. Free citizens exercising their constitutional rights to speak out against their government should not have to worry that their photos are sitting in a police file somewhere. That reeks of the 1960s and '70s, when federal agents infiltrated and spied on the civil-rights and antiwar movements -- abuses that led to reforms that are now threatened because of the war on terrorism.

This story should have had a happy ending, but Chief Gallagher managed to spoil it. In May, he submitted a new policy to city officials promising not to take photos at peaceful rallies -- unless, that is, "there is a reasonable belief that the photographic surveillance may provide information necessary to facilitate investigations." That's a loophole big enough to stick a zoom lens through.

Ronal Madnick, of the Worcester ACLU, wants a policy that restricts photos to criminal activity and ongoing criminal investigations. That sounds reasonable. What about it, Chief?

Dan Kennedy can be reached at dan@dankennedy.net.

Issue Date: June 27 - July 4, 2002