Censorship and the Phoebe Prince bullying case

By Bill Newman, director of ACLU’s western Massachusetts office, Northampton, Mass.

The suicide of Phoebe Prince, the reports of bullying at the South Hadley High School, and the criminal indictments of six students. These emotionally charged issues, exponentially exacerbated by intense local and national media coverage, have roiled this western Massachusetts town.

At the beginning of the School Committee meeting of April 14, the first after the criminal indictments, the committee chair announced his ground rules for discussing the Phoebe Prince case during the public comment session.  When a speaker, Luke Gelinas, used his time to discuss bullying and criticize school officials, the chair ordered the police to remove Mr. Gelinas from the microphone and the meeting.

That censorship received widespread condemnation and although the School Committee has not yet formally responded to the ACLU’s demand to cease its censorship, the ACLU as a practical matter has received an answer.  During the public comment session of the subsequent School Committee meeting, its critics were not silenced.  They fully expressed their views, and no one was tossed out.

As the Daily Hampshire Gazette, the county’s newspaper of record, editorialized, “Our free speech protections can make for some ugly interaction[s] . . . .  Fortunately, the First Amendment protects the spoken opinions of all of us, no matter how unwelcome or obnoxious at times.”  The paper correctly noted that a public board “can set their own rules on the scheduling of Public Comment and the length of time a speaker is allowed, but cannot censor the message itself.” 

Censorship of both content and viewpoint is exactly what happened at that April 14 South Hadley School Committee meeting.  Such censorship, such discrimination based on viewpoint and content, is precisely what the First Amendment forbids.

 There is an antiipatable irony to the attempted censorship.  Instead of quieting the criticism, the gaveling down and removal of Mr. Gelinas engendered far more publicity of his viewpoint than ever would have occurred if the chair simply had allowed the speaker to have his say.

R.I. school board sued over controversial executive session

By Steve Brown, executive director, Rhode Island ACLU

Never underestimate the creativity of public bodies seeking to conduct meetings in private. That’s one lesson we’ve learned in seeking to halt a disturbing trend in Rhode Island of unlawful private meetings to discuss legal-related matters.  For the second time in six months, we have filed an Open Meetings Act lawsuit against a school committee for violating the law’s provisions governing the holding of executive sessions.

The latest suit, filed against the East Providence School Committee, alleges that the committee illegally met in private in September 2009 to discuss what it called a “Public Comment Lawsuit.” However, that lawsuit doesn’t exist. In fact, when we filed an open records request to obtain copies of any documents related to this “lawsuit,” the school committee responded that no documents existed. What they most likely secretly discussed was a letter that the ACLU had sent,  seeking background documents on the committee’s “public comment” policies, which had been a source of great community controversy. Their most recent policy, which had caused an uproar, required people desiring to speak at committee meetings to submit a formal written request at least one week in advance. Somehow, seeking information about the policy was enough to turn things into an imaginary “lawsuit” against it.

Last August, we filed a similar suit against a closed meeting that the Barrington School Committee held to discuss the merits of a mandatory breathalyzer policy for students attending school dances. Like East Providence, the school committee relied on the “litigation” exemption to meet in private, when at the time of the executive session there was no litigation pending or threatened and there was not even a specific policy in place that could have been challenged through litigation. Instead, the school committee argued that a letter the ACLU had sent raising policy concerns about breathalyzer testing constituted a “threat” of litigation authorizing a closed meeting.

In both cases, school committees have stretched what was supposed to be a narrow exemption – allowing public bodies to discuss necessary legal strategy – into an exception that swallows the rule. Recently, a judge denied Barrington’s motion for summary judgment, and we are hopeful our suits will ultimately end this trend of treating any curiosity or criticism about a policy into “potential litigation” that can be discussed in secret.

Vt. ACLU chapter files complaint over cell phone tracking

By Allen Gilbert, executive director, ACLU-Vermont

When you carry a cellphone with you, you’re constantly broadcasting your whereabouts. That’s OK when it’s your cellphone provider and you’re receiving a call. But it’s not OK when it’s law enforcement tracking you without a warrant.

Police use of cellphone tracking data has become of great concern nationally. Maybe you heard the story about it the other week from the “On The Media” show on National Public Radio.

The government is claiming that when you agree to have a cellphone, you’re agreeing to tracking.

We say police can get tracking data from providers only if they have probable cause and a warrant from a court.

We don’t know if Vermont law enforcement is getting tracking data from the cell providers operating in Vermont. So we asked the Attorney General’s Office, through a public records request, whether they are utilizing this tool.

The Attorney General’s Office told us any records that they might have are exempt from disclosure. We disagree, and filed suit to contest the denial.

The implications of government’s ability to track us through our cellphones is chilling. Maybe if we knew what’s happening when we turn on our cellphones, we’d turn them off.

Lawsuit documents:

• Our request to the Attorney General (Feb. 5, 2010) [PDF]
• The Attorney General’s denial (Feb. 11, 2010) [PDF]
• Our administrative appeal of the denial (Feb. 11, 2010) [PDF]
• The Attorney General’s final denial (Feb. 19, 2010) [PDF]
• · Complaint, ACLU of Vt. v. Office of the Att’y General, No. 184-3-10 WNCV (Vt. Super. Mar. 15, 2010) [PDF]