Author Archives: William H. Freivogel

The Bill of Rights puts on a business suit


When America celebrated the 200th birthday of the Bill of Rights in 1991, no one foresaw the powerful forces that would remake it over the next quarter century.

  • The communications revolution and rise of Facebook-Twitter-Google democracy
  • The loss of privacy to unforeseen technology
  • 11, 2001, and the growth of the national security state
  • Citizens United and the flood of big money into elections
  • The Wild West of a virtual public forum flooded with news, fake news and hate speech
  • The nation’s fascination with guns and expansion of Second Amendment rights
  • The evolving decency that ended the execution of juvenile killers

By 1991, the First Amendment had developed into a powerful shield against government abuse of outsiders, leftists, anarchists, communists, labor unions, Jehovah’s Witnesses, atheists and non-Christians.

“The Bill of Rights is a born rebel,” wrote Frank I. Cobb, a 20th century news reporter. “It reeks with sedition. In every clause it shakes its fist in the face of constituted authority… It is the one guarantee of human freedom to the American people.”

But in the past 25 years the Bill of Rights has put on a business suit. Today it increasingly protects the wealthy, corporations, conservatives, fundamentalist Christians, property owners and other moneyed interests.

“The court has put much more energy into expanding the free speech rights of politically or economically powerful speakers, while largely disdaining the First Amendment concerns of politically and economically disempowered speakers” says Gregory P. Magarian, law professor at Washington University and former Supreme Court Clerk.

In 1991, liberals worried the conservative Supreme Court would cut back on civil liberties. In 2016 many liberals fear the Supreme Court has granted too many new rights.

Liberals often find themselves calling for less-expansive rights:

  • Fewer free speech rights for corporations and rich people to influence elections.
  • More restrictions on campus speech in the form of trigger warnings and rules against  “micro-aggressions.”
  • Less religious freedom for conservative Christians to refuse to bake a cake for a same-sex couple or to fill a prescription for the morning-after pill.
  • Fewer rights for gun owners.
  • Fewer free speech rights for workers who don’t want to pay union dues.
  • Fewer property rights to block environmental regulations of beachfronts and wetlands to preserve endangered species.

By contrast, many conservatives worry that liberals’ restrictions on freedoms can leave elections in control of the big media corporations, can enforce political correctness on campus and in society, can force God-fearing pharmacists, bakers and florists to compromise deeply held religious beliefs, can take away guns from law-abiding citizens and subject property owners to extreme environmental regulations.

And then there is President-elect Donald Trump, a force of his own, who ran a campaign opposed to political correctness but who now complains about speech he finds incorrect — from burning the flag to investigative journalism and an actor’s critical speech from the stage production Hamilton. Playhouses are supposed to be “safe” spaces, Trump says, but campus rules intended to make minorities feel safe are political correctness. Trump advocates laws criminalizing flag-burning and making it easier to win libel awards from media, even though those laws would be unconstitutional violations of the First Amendment.

What follows are some of the most important changes that have occurred in the Bill of Rights in the quarter century between its 200th anniversary in 1991 and its 225th this Dec. 15.


Communications revolution — what press?


In 1991 there was no Internet, no Google, no Facebook, no Twitter, no smart phone, no Fox News, no Huffington Post, no Breitbart and no WikiLeaks. Rush Limbaugh was just starting right-wing radio rants. There were no likes or tweets or citizen journalists. The golden age of legacy journalism sailed obliviously on, like the Titanic toward an unseen iceberg. The notion that millions of tweets could overwhelm the narratives of professional journalists was unimaginable. So was the idea that a president could get elected partly on the strength of 140 character messages insulting opponents and private Americans. Or that “publisher” Julian Assange would become the purveyor of documents hacked from the Democratic Party by Russian spies. Or that thousands of “chatbots” — online robots with artificial intelligence — would post fake news across the Internet in the days before the 2016 election.


Watergate forgotten


At the same time the communications revolution have transformed speech in the public space, unlimited election spending by corporations, labor unions and the wealthy have transformed political campaigns. Watergate’s lesson of “follow the money” is a distant memory. Thanks to Citizens United, corporations have a First Amendment right to spend as much money as they want on the election of a candidate and the voters don’t get to know who gave millions until after the election. Campaign spending for the two major presidential candidates exceeded $2 billion this year, more than four times that of 1992 when candidates still relied on the now defunct post-Watergate public financing system.



National security state


1991 was a decade before 9/11. No one imagined terrorists bringing down the World Trade towers and attacking the Pentagon. There was no Patriot Act. No prison at Guantanamo to circumvent due process. No drones to kill enemy combatants on foreign soil. The United States was a proud adherent of the Geneva Convention and its bans on torture. Waterboarding was something other nations did. Roundups of men from the Middle East seemed like a bad dream from another era, like the discredited roundups of Japanese-Americans during World War II.

But in the scary time after 9/11, Attorney General John Ashcroft rounded up young Middle Eastern men, triggering a legal case only now playing out before the Supreme Court where the men say they were targeted for their religion. Today’s America is frightened too. The incoming Trump administration talks about banning refugees, deporting immigrants and reinstating torture.


Surveillance state


The thought that the National Security Agency could collect metadata on all Americans’ telephone calls was preposterous in 1991. The Global Positioning System was for the military, not consumers. A person’s location was not constantly tracked by a cell phone in the pocket. Consumers’ purchases were not constantly tracked by their online searches. And street corners weren’t under 24-hour surveillance from ubiquitous security cameras.

Only science fiction had thought of technology such as today’s Stingray system for picking up phone conversations from outside a building. No one needed a right to be forgotten. But as the sweep of the modern surveillance state began to sink in, the Supreme Court pushed back, ruling the government needed a warrant before putting a GPS device on a suspect’s car or searching a person’s cell phone.


Disappearing right of privacy


The right of privacy – a right found in parts of the Bill of Rights and in the constitutional protection of “liberty” – was under assault as the Bill of Rights turned 200. It is under assault again at 225. The Supreme Court of 25 years ago was about to hear a case threatening to read the abortion right out of the Constitution. But the court held to precedent. Not only did it reaffirm Roe v. Wade, but it later expanded that right of individual liberty to encompass same- sex marriage – an expansion almost no one would have predicted in 1991 when not a single state permitted same-sex marriage.

But the right of privacy continues to have shallow roots in the Constitution. Many conservatives say these are unenumerated rights that do not deserve constitutional protection. Replacing the late Antonin Scalia and any one of the three oldest justices with two more Scalias could end the constitutional protections for abortion and same-sex marriage.



Political correctness: equality vs. freedom


The tensions between freedom and equality – two great values of the U.S. Constitution and democracy – have intensified. In 1991 political and religious conservatives were realizing the First Amendment’s protection of religious freedom and free expression could protect them against what they saw as an overbearing political correctness embodied in college speech regulations. Today, liberals and conservatives alike worry that trigger warnings, safe spaces and identity politics can stand in the way of a university’s core liberal purpose of challenging a student’s unexamined assumptions.

Last year, Melissa Click, then a communications professor at the University of Missouri, tried to block a student journalist from taking a photo of black protesters who, she said, needed safe space. Click’s attempt to impose a kind of political correctness on the photographer ran into another form of political correctness from the Missouri Legislature, which demanded her job and got it.

Nationwide, blackface and redface Halloween costumes led to an uproar at Yale, Mexican-American costumes to an apology at Louisville and the University of Oklahoma kicked out a student singing a KKK lynching song on a university bus.


More state support for religion


Since 1991, the Supreme Court has banned public school sponsored graduation prayers, prayers at the Friday night football game and the Ten Commandments on courtroom walls or courtroom monuments. But in a break from the past, the court approved state-funded vouchers for parochial school children. And, in a current Missouri case, the court may allow the state to pay for rubber playground materials for Trinity Lutheran pre-school in Columbia, despite a state constitutional provision that sets up a stricter separation between church and state than the First Amendment. The Supreme Court also opened the way for prayers by local pastors before city council meetings and state and national monuments with religious texts or symbols, such as a six-foot monument of the Ten Commandments on Texas Capitol grounds and the Mojave Memorial Cross built on public land to honor veterans.


Religious freedom


Anyone taking the time-machine from 1991 straight to 2016 would have trouble figuring out what had happened to religious liberty. Scalia cut back constitutional protection for religious liberty in the 1990 Employment Division v. Smith decision, where Native Americans sought protection for their use of peyote in a sacramental ritual. Scalia said the state could enforce generally applicable state laws – such as those penalizing those using peyote – even if those penalized were exercising their religious freedom. With largely Democratic support, Congress passed the Religious Freedom Restoration Act to overturn Smith and restore a higher level of protection for religious liberty. Now conservative legislators are passing state versions of that law to enable florists and bakers to avoid serving same-sex couples based on religious belief. The Supreme Court also used the federal RFRA to recognize the religious freedom of a corporation, Hobby Lobby, to object to contraception requirements of the Affordable Care Act.


Big data


“Big data” – the computer analysis of huge data bases – didn’t exist in 1991, but now the Supreme Court protects it. In a 2011 Vermont case, the court ruled the state could not prohibit pharmaceutical companies from obtaining data on doctors’ prescription writing practices. The companies wanted the data to market their more expensive, brand-name drugs to doctors. Vermont had tried to block the release of this prescription information to protect the privacy of the doctor-patient relationship and to keep down health-care costs. Justice Anthony M. Kennedy wrote that the First Amendment keeps the state from singling out “disfavored speech by disfavored speakers” – the disfavored speech being the marketing of brand-name drugs and the disfavored speakers the pharmaceutical companies. Mark Sableman, a media lawyer at Thompson Coburn in St. Louis, says protecting big data is important to modern journalism that often is based on computer-assisted reporting that analyzes huge government databases.


Fascination with guns


In 1991, Missouri, Illinois and most Midwest states had laws against carrying concealed guns. A few years later Congress banned the manufacture of assault rifles. Now tables have turned. The federal assault rifle ban has lapsed and not a single state bans concealed guns. Faced with an insatiable appetite for guns, all states have either passed laws ending regulation of guns – such as Missouri – or adopted “must issue” laws, such as Illinois, that institutionalize concealed carry. Stand-your-ground and Castle doctrines provide legal protection for using a gun to defend oneself or property. Meanwhile, the conservative majority on the Supreme Court turned its back on precedent and for the first time recognized an individual right to own a gun to protect the home. The decision left plenty of room to regulate assault rifles and concealed guns, but pro-gun majorities in many legislatures, such as Missouri, claim gun laws take away Second Amendment rights. Although the claim is inaccurate, the gun lobby uses it effectively.


Ending juvenile death penalty


By 1991, most states had passed a new generation of death penalty laws, responding to a 1970s decision that found traditional laws arbitrary and capricious. Twenty-two juveniles were executed between 1985 and 2003. Only Iran executed more young people. Christopher Simmons awaited execution in Missouri for murdering Shirley Crook by tying her to a chair and throwing her into the Meramec River. But in the Simmons case the Missouri Supreme Court led the movement to end execution of murderers 17 and younger. The U.S. Supreme Court agreed, finding that the nation’s and world’s evolving standards of decency no longer permitted executing teens because their brains still were developing. Capital punishment for juveniles was therefore deemed cruel and unusual punishment under the Eighth Amendment. Life imprisonment without parole also violated this standard of decency.

Meanwhile, in Illinois, the Innocence Project, run by former Northwestern University journalism professor David Protess, uncovered more than a dozen cases of wrongful convictions in murder cases. Gov. George Ryan ended executions. Nationally, the number of executions, which had increased to almost 100 a year by the end of the 20th century, has dropped almost every year; 28 people were executed in 2015 and 18 this year through mid-November.


What’s liberal and what’s conservative?


Taken together, the changes over the past 25 years have mostly broadened and strengthened the Bill of Rights and at the same time protected new conservative causes.

The Earl Warren court of the 50s and 60s protected communists, civil rights protesters, the Ku Klux Klan, a young man wearing a “Fuck the draft” jacket in a courthouse. It protected the media from President Nixon’s attempt to stop the presses printing the Pentagon Papers. And New York Times v. Sullivan protected the northern media from the attempts of southern politicians to bankrupt them for aggressive reporting of the Civil Rights Movement.

During the Rehnquist court the speech of outsiders continued to flourish with protection of flag-burning, Margaret Gilleo’s anti-war sign in the window of her Ladue home and the ribald parody that Hustler magazine printed of the Rev. Jerry Falwell having sex “for the first time” with his mother in an outhouse. But there were signs of change in rulings protecting religious majorities and rejecting hate crime laws.

In the Roberts era, the winners in First Amendment cases have more often been established interests. People who used to be insiders are sometimes on the outs with liberal political majorities – corporations making political expenditures, pharmaceutical firms seeking to use big data for marketing efforts, corporations such as Hobby Lobby objecting on religious grounds to Obamacare rules on contraceptives. Labor unions, already threatened by expansion of right to work laws, now are on the brink of losing the power to charge union dues to workers who say union activities violate their free speech rights.

Whereas the great free speech decisions of the 60s and 70s were sparked by the court’s liberal justices, its conservative justices now are often more likely to support First Amendment claims – such as Citizens United, where the five justices in the majority were the most conservative five.

One factor in the change was the growth of conservative legal advocacy. The Federalist Society, Pacific Legal Foundation, Liberty Counsel and Center for Individual Rights all took a page from the successes of the ACLU, NAACP Legal Defense Fund and Ralph Nader. The ACLU, LDF, and Nader’s groups had won victories for blacks, consumers and students who didn’t want to be forced to pray in school. The new conservative legal groups began winning for white students who felt disadvantaged by affirmative action, Christian students who wanted to meet in campus buildings and property owners fighting environmental regulations that interfered with their property.

Roger Goldman, a professor at Saint Louis University Law School, wonders whether today’s conservative justices would have supported the free speech decisions of half a century ago. “I’m wondering if Roberts and the conservatives would have joined the liberals in the old First Amendment cases involving communists, loyalty oaths, obscenity, etc.,” he wrote in an email. “In other words, (I’m wondering whether) the new conservatives disagree with the old conservatives of the 40s thru the 90s.”

Professor Joel Goldstein, also at Saint Louis University, raises the opposite question. Justice Louis Brandeis was one of the great architects of First Amendment law in the 1920s, but Goldstein says Brandeis might have dissented from a decision giving First Amendment protection to the Rev. Fred Phelps who picketed the Catholic funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq.

Phelps’ Westboro Church says God is punishing the United States for homosexuality. The signs the church members carried read: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell” and “God Hates You.”

Roberts likened his decision to free-speech precedents of the past, including the flag-burning decision, the New York Times v. Sullivan libel decision and Cohen v. California permitting a war protester to wear into a courthouse a jacket with the words “Fuck the Draft.”

In New York Times v. Sullivan, Justice William J. Brennan Jr. wrote the First Amendment required enough breathing space to allow news organizations to make mistakes about public officials. Chief Justice Roberts said that Westboro protesters were addressing issues of public concern and needed breathing space as well.

Just as the court had once upheld a parody of the Rev. Falwell’s “first time”with his mother in an outhouse, Roberts said that the Westboro protesters hyperbole was protected.

But Goldstein doubts Brandeis would have gone along. “Brandeis wrote one of the most powerful justifications of free speech…,” Goldstein said, “yet also believed in a right to privacy… Although I am always skeptical of claims regarding how someone who has been dead for nearly 70 years would have reacted to contemporary circumstances, it’s hard for me to believe Brandeis would have thought a funeral was a constitutionally protected venue for speech attacking the decedent.

“…If we as a society recognize a right to privacy that goes beyond spatial confines, I would think that a funeral would rank at or near the top of experiences where the claims would be strongest. Surely someone who is grieving the loss of and burying a loved one in engaged in one of the most poignant of life’s experiences….”

Alito v Lessig

Today the calls for constitutional amendments or constitutional conventions are as likely to come from liberals as conservatives.

Some liberal groups would like to see constitutional amendments that protect positive rights, such as the right to an education, health care and housing. The current Bill of Rights protects negative rights – blocking government abuses of the people.

Some conservative groups would like amendments to ban burning the American flag, redefine citizenship, require a balanced budget and protect victims of crime.

One amendment that has gotten quite a bit of attention is advanced by Harvard Law Professor Lawrence Lessig and liberal groups for overturning Citizens United by enabling Congress to regulate political spending and contributions. Forty senators have signed on to the amendment.

Justice Samuel Alito, one of the leading conservatives on the court, made it clear in a speech to the conservative Federalist Society after Trump’s election, that he and other conservatives oppose that amendment and others that would undo the conservative handiwork of the past 25 years that expanded the First and Second amendments.

“More than 40 senators have proposed an amendment to the First Amendment, which in itself is an important development,” Alito said. “And what would that amendment do? It would have the effect of granting greater free speech rights to an elite group, those who control the media, than to everybody else.”

Alito also worried that a more liberal court could overturn the 2008 Heller decision recognizing an individual’s right to own a gun. He called that opinion “perhaps Justice Scalia’s most important majority opinion.”

Alito mocked the University of California’s suggestion that the term “melting pot” was a micro-aggression offending minorities. He questioned campus speech codes as inconsistent with a famous line from Justice Robert Jackson’s opinion in 1943 holding that students who were Jehovah’s Witnesses didn’t have to salute the flag because of their belief it was a graven image.

Jackson wrote then, “If there his a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

Alito added, “On college campuses, both public and private, a new orthodoxy rules. Suppose a student were to test Justice Jackson’s proposition today by wearing an article of attire supporting a political candidate who was unpopular among students and professors by proclaiming that the United States is a great and a good country and by expressing certain traditional religious beliefs.

“How would that go over?”

In the passionate pleadings of both left and right there is a common thread: Something is wrong with our democracy, whether you call it the Facebook Democracy, the Post-Fact Democracy, the Digital Democracy, the Virtual Democracy, the Surveillance State or the Politically Correct Democracy. The great task of the 21st century is adapting democracy to the rapid expansion of freedoms, the flood of information and disinformation and the new gadgets of communication that are just as likely to invade privacy as to connect us to the rest of the world.

The press’s identity crisis

The press is losing its power, its credibility and its way.

As the Bill of Rights turns 225, the one business it protects, the press, is suffering an identity crisis.

Who is a journalist? Is Julian Assange a publisher? By democratizing news does the Internet serve democracy or confuse it? By serving as a world wide communications system does the web draw us together or fracture us into warring factions? Should Facebook and other online social media take down false news or hate speech or alt-right advocacy or incitement against police?

Why didn’t voters heed the investigations and fact-checks of Donald Trump? Does adherence to journalistic neutrality obscure the truth in false equivalencies? Is Trump, with his morning tweets, playing the press by setting the news agenda? Should the press publish WikiLeaks’ stolen emails, even if it is effectively serving as an arm of Russian intelligence? How can professional journalists regain trust and distinguish their work from the fake news exploding on the Internet?


A 25 year fade


In 1991, on the 200th anniversary of the Bill of Rights, the press was at the height of its power and influence although people’s confidence was low.

Now, 25 years later, the power and influence of the mainstream media have waned and the people’s trust has fallen even more precipitously. Just after Watergate, 72 percent of Americans had confidence in the press, according to Gallup. The number dropped to 55 percent in 1991. Now it’s 32 percent with only 26 percent of those under 50 saying they have confidence.

A majority of the youngest citizens, Millennials and Gen Xers, report getting most of their news about politics and government from Facebook, which isn’t a news organization.

The mainstream media have themselves to blame in part for the lost credibility. Jason Blair invented stories at The New York Times. Judith Miller reported for the Times on weapons of mass destruction that didn’t exist. Leading news organizations all but convicted the nuclear scientist Wen Ho Lee of espionage and Steven Hatfill of sending anthrax to Capitol Hill. Neither accusation was true.

Meanwhile the legacy media were sidetracked by the biggest revolution in communications technology since Guttenberg’s movable press half a millennium ago. Science put magical devices in everyone’s pocket that permitted instantaneous communication.

The list of new communications devices, institutions and communication terms is mind-numbing – citizen journalist, smartphone, GPS, social media, Google, Facebook, Twitter, Snapchat, Instagram, Periscope, livestream, tweet, aggregate, link, likes, impressions, shares, comments, friends, followers, page views, click bait, fake news, big data, Drudge, Breitbart, alt-right, Huffington Post, Fox, MSNBC, chatbots, WikiLeaks, Google Earth, Google Street View, virtual reality, photoshop, face recognition software.

As news media platforms explode, the press is having a nervous breakdown that echoes through the public space and challenges democratic processes. The word – press – is itself an anachronism as printing presses close across the country.

The number of reporters in newsrooms has declined by 20,000 in the past decade. That is a decline of about 40 percent, from 54,000 to 33,000. With each buyout and layoff, news organizations lose the muscle to serve as watchdogs.

More than 120 daily newspapers have closed since 2004 and print advertising is falling off a cliff. It was down 8 percent last year nationally, according to a Pew study, with print advertising at The New York Times down double digits.


Existential crisis


But the crisis runs deeper than closed newspapers and empty newsroom desks.

Christiana Amanpour, the CNN foreign correspondent, said a month after the presidential election that journalists face an existential crisis. She said:

“We have to accept that we’ve had our lunch handed to us by the very same social media that we’ve so slavishly been devoted to.

“The winning candidate (Trump) did a savvy end run around us and used it to go straight to the people. Combined with the most incredible development ever–the tsunami of fake news sites–aka lies–that somehow people could not, would not, recognize, fact check, or disregard.

“…Facebook needs to step up…I feel that we face an existential crisis, a threat to the very relevance and usefulness of our profession…”

“In the same way, politics has been driven into poisonous partisan and paralyzing corners…that same dynamic has infected powerful segments of the American media…Journalism itself has become weaponized. We have to stop it.”

A decade ago, Cass Sunstein, a First Amendment expert, foresaw potential dangers ahead. “As a result of the Internet, we live increasingly in an era of enclaves and niches—much of it voluntary, much of it produced by those who think they know, and often do know, what we’re likely to like,” Sunstein said in 2007. “If people are sorted into enclaves and niches, what will happen to their views? What are the eventual effects on democracy?”


Powerful democratizing force


Is Amanpour right or is this handwringing by overwrought liberal reporters who wouldn’t see a crisis if Hillary Clinton had won?

In many ways the Internet and social media are miracles of science and engineering. They are powerful democratizing forces that allow outsiders to go over the heads of media elites and get their story out to the country and world.

The outsiders might be the Black Lives Matter protesters alerting the nation and the world to police abuse of African-American men. Or they might be conspiracy theorists who think 911 was a U.S. orchestrated intelligence operation or that the massacre of first graders at Sandy Hook was a fictional Hollywood production designed to take away people’s guns.

Trump used Twitter in very much the same way as Black Lives Matter, getting information to the masses by bypassing or hijacking traditional media.

It may be that the problem with 2016 election coverage was less the Internet and more the habitual failings of the mainstream press.

Thomas Patterson, in a report for the Harvard’s Shorenstein Center on Media, Politics and Public Policy, put his finger on the high level of negativity in the press coverage of both Trump and Clinton. The report showed that only about 10 percent of the presidential election coverage involved policy; about 60 percent focused on the horse race or controversies.

Patterson said, “an incessant stream of criticism has a corrosive effect. It needlessly erodes trust in political leaders and institutions and undermines confidence in government and policy.”


Fake news


The 2016 presidential election campaign featured an unprecedented amount of fake news online. Both liberals and conservatives were guilty, although Buzzfeed found that hyper-conservative sites had a higher percentage of false or mostly false stories than hyper-liberal ones.

Buzzfeed also found that the entirely false news stories from fake news sites got more attention on Facebook than the top real stories.

“In the final three months of the US presidential campaign,” it concluded, “the top-performing fake election news stories on Facebook generated more engagement than the top stories from major news outlets such as the New York Times, Washington Post, Huffington Post, NBC News, and others,”

Among the fake stories getting the most traction were those claiming the pope endorsed Trump, Clinton sold weapons to ISIS and that an FBI agent investigating Clinton’s emails had been found dead. One of the fake stories about Trump claimed the “surgeon general of the US warned that drinking every time Trump lied during the first presidential debate could result in acute alcohol poisoning.”




The gunfire at the Comet Ping Pong pizza restaurant in Washington,D.C. on Dec. 4, 2016 illustrates how fake Internet news, entangled with politics, can have dangerous consequences. The Washington Post retraced the origins of the false story:

In late October and November, more than one million tweets contained the twitter handle “pizzagate.” It referred to an Internet conspiracy that Hillary Clinton was involved in a child sex ring operating out of the basement of a popular Washington, D.C. pizza place called Comet ping pong. (The restaurant had ping pong tables but no basement.)

Alex Jones, the right-wing conspiracy theorist and Trump supporter, jumped into the controversy with a YouTube video stating Hillary Clinton was “involved in a child sex ring” and had “personally murdered, chopped up and raped” children. The video was viewed 427,000 times.

The Friday before the election, the owner of Comet pizza got streams of comments on his Instagram calling him a pedophile. An online conversation on 4Chan and Reddit claimed a child sex operation was being run out of the restaurant with children held in the basement. Nearby shops also began getting threats.

The hashtag #pizzagate was retweeted hundreds or thousands of times each day from places like the Czech Republic, Vietnam and Cyprus. Bots – programs designed to promote tweets – composed many of the retweets.

On Nov. 16, Jack Posobiec, former Naval Reserve intelligence officer involved in a pro-Trump organization, went to Comet to investigate. He walked into a back room where a child’s birthday party was underway and started to livestream it to a worldwide audience on the Periscope app. He didn’t have the family’s permission and the restaurant forced him to leave.

He explained: “People have lost faith with government and the mainstream media being any real authority…If I can do something with Periscope and show what I’m seeing with my own two eyes, that’s helpful.”

On Sunday, Dec. 4, Edgar Maddison Welch decided to self-investigate. He walked into the restaurant with an assault rifle and handgun looking for the children and tunnels. After about 45 minutes, firing the gun but finding nothing, he surrendered.

The Post concluded that Pizzagate was “possible only because science has produced the most powerful tools ever invented to find and disseminate information.”


The First Amendment


The classic liberal response to false and hateful speech is more speech. As Justice Louis Brandeis put it in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Critics have called upon Facebook to exercise greater editorial control, now that it has become the world’s most influential publisher. And there are indications that it is moving that direction. Facebook has appointed a task force to look into the fake news and Google will bar fake news sites from its AdSense advertising program, cutting off revenue.

But Nicholas Lemann of The New Yorker doesn’t think Facebook is up to the task. ‘It’s a sign of our anti-government times that the solution proposed most often is that Facebook should regulate it. Think about what that means: one relatively new private company, which isn’t in journalism, has become the dominant provider of journalism to the public, and the only way people can think of to address what they see as a terrifying crisis in politics and public life is to ask the company’s billionaire C.E.O. to fix it.’

Lemann has different idea: “If people really think that something should be done about the fake-news problem, they should be thinking about government as the institution to do it.”

That, however, runs smack into the First Amendment. The Supreme Court provides the Internet the same high level of protection as a newspaper. Any government action to sort out and punish fake or misleading news would most likely be unconstitutional.

On one thing Lemann is right. This problem of fake news is not new. Joseph Pulitzer saw the danger more than a century ago when he issued this warning about a world without well-educated journalists:

“Our Republic and its press will rise or fall together,” Pulitzer wrote. “An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery. A cynical, mercenary, demagogic press will produce in time a people as base as itself. The power to mould the future of the Republic will be in the hands of the journalists of future generations.”

Arthur Miller, the playwright, put it more colloquially. “A good newspaper, I suppose, is a nation talking to itself.”

Twenty-five years from now, when the Bill of Rights celebrates its 250th birthday, there probably won’t be daily papers delivered on people’s lawns. But the electronic and digital media that remain need to find a way to help the nation talk to itself again.

Remembering Judge Rick

Missouri Supreme Court Judge Richard B. Teitelman was a friend of equal justice, a friend of the Bill of Rights and a friend of the journalism review. He was a friend of mine and many others his life touched. This issue celebrating the 225th the Bill of Rights is dedicated to Judge Rick who died last month.

If you have a mental image of a judge in your mind, forget it. Judge Teitelman was nothing like any other judge.

Michael Wolff, the outgoing dean of the Saint Louis University Law School and a former colleague of Teitelman’s on the court, described his friend this way in a column for the Post-Dispatch:

“Most mornings before a Missouri Supreme Court session was to begin, Judge Richard B. “Rick” Teitelman, a large disheveled man with big thick glasses and a smile to match, would appear in the courtroom and go around shaking hands making everyone feel welcome. Unusual for a supreme court judge, but it was perfectly in character for one of the most remarkable men I have ever known.”

If Teitelman knew that the wife or parents of one of the lawyers arguing a case was in the courtroom, he’d make special effort to say nice things about the argument, said Wolff.

Teitelman was the first Jewish judge on the Missouri Supreme Court and the first who was legally blind.

After graduating from Washington University Law School in 1973, Teitelman had to get a reader to take the bar. After passing he couldn’t get a job because of his blindness so he hung up his shingle outside his one-room apartment. Sometimes he took a bus to work.

His representation of farm workers during the grape boycott got the attention of Legal Services where he went to work. By 1980 he was executive director. There he inaugurated the Justice For All ball to raise money for legal services.

One reason Teitelman worked the room was to supplement his eyesight and figure out who was present. But Teitelman was genuinely interested in people.

A friend of his, emeritus professor Roger Goldman at Saint Louis University Law School, remembers a funny story. “He never missed an opportunity to talk to someone,” Goldman recalled.  “Once I was walking on the SLU campus and I spotted Rick in conversation.  When I got closer he was talking to the Billiken Buddha like sculpture!  When I told him, he let out a big laugh and asked how I was doing.”

Teitelman dedicated his life to serious causes but he did not take himself too seriously.

Attorney David Camp clerked for Teitelman a decade ago. That job included driving him to Jefferson City for oral arguments. One day Teitelman asked him to start at 5 a.m. so they could stop by a little store in north St. Louis to pick up an order of sardines. The sardines were in a styrofoam container with a flimsy plastic lid. Teitelman told Camp is was “the good stuff. It’ll be my emergency stash.”

On Thursday after a week of oral arguments, the sardines were still there. “We load up my car and take off,” Camp recalls.  “There, on my dash, he has placed the styrofoam container of 3-day-old unrefrigerated sardines.  He always wanted me to drive as fast as possible.  I would say ‘Rick, you’re blind, how can you even tell?’  He would say ‘I can hear cars that pass us, let’s go!’

“So, I’m weaving in and out, trying to pick up the pace, and Rick is pleased.  He decides it’s time to eat, and opens the sardines container.  Rick said ‘these are better with age’ and grinned at me.  Just then, a truck cut me off and I hit the brakes, causing the sardines, and the sardine oil, to slosh just enough to escape the meager confines of the styrofoam container.”

After a weekend of trying to clean his car, Camp sold it. The next Monday Camp picked him up in another car. Teitelman was pleased. The new seat was more comfortable.

Teitelman often told the story on himself. “He said he liked the story because it showed how tenacious he was in finishing something, and in not being wasteful, and that his clerks were good at problem-solving.”

Another time Camp ran into Teitelman outside a suburban movie theater. Teitelman loved movies, watching from the front row. Camp asked if the judge would like to see a movie with him. Teitelman said he couldn’t. The theater had kicked him out thinking he was a vagrant because he had fallen asleep.

“Rick never did pull out his badge or explain his stature in such situations,” Camp recalled in an email.  “I think he was Chief Justice at the time.  He proposed that we go for a bite to eat instead – he always knew of a place.  We did, and after our meal, he looked at me with a serious expression, leaning over so as not to be overheard: ‘we should go back to the theater now and try to get in, they just had a shift change!’”

At times, when clerks were having trouble finding precedent to back up an argument, Teitelman would tell them the story of a man he had represented as a young lawyer. The man had been arrested for shoplifting one can of dog food.

“The man had been caught in the act.” recalled Camp.  “What was the defense?  Well, that it was dog food, and that was to be his dinner.  The man had used all his food stamps to feed his family, and gone to the grocery store to look for a dented dog food can, for his meal.  He had a can opener in his pocket, and hoped to eat it before returning home to avoid the shame.  He thought the store couldn’t sell the dented cans, and it wouldn’t do them harm.  Upon hearing the full story, the prosecutor decided to drop the case.

“The lesson: always look at the whole story, the context, and how people are affected by the law.  Rick believed the law must be formed to protect fundamental values of human decency and dignity.”

Teitelman reflected those values in important court decisions.

– The evolving standard of decency protected by the Eighth Amendment meant that juvenile murderers should not be executed, the Missouri Supreme Court decided. That decision paved the way for the U.S. Supreme Court ruling ending juvenile executions.

– The right to a jury trial, protected in the Missouri Constitution, meant that the legislature couldn’t cap awards for pain and suffering in medical malpractice cases.

– Manifest injustice was the reason to overturn the murder conviction of death row inmate Joseph Amrine. Amrine had been convicted in a fair trial of killing another inmate but all of the witness later recanted. The state argued the execution should go forward because the trial was fair. Teitelman wrote, “It is difficult to imagine a more manifestly unjust and unconstitutional result than permitting the execution of an innocent person.”

– The long history of civil rights progress – first desegregating schools, then striking down laws against interracial marriage and then outlawing sex discrimination – justified survivor benefits to the same-sex partner of Missouri Highway Patrolman Corporal Dennis Engelhard, killed in the line of duty.

“With the benefit of hindsight, the various decisions extending the guarantee of equal protection to racial minorities and women, though intensely controversial at the time, now seem obvious to a vast majority of Americans,” wrote Teitleman. “Now that (they)…. are woven firmly into the fabric of constitutional law, this question remains: Why did it take so long?”

Teitelman wrote that passage in a dissent in 2013 because the majority of the court was not ready to take on Missouri’s ban on same-sex marriage. He was far-sighted. The U.S. Supreme recognized two years later that it had taken too long.


Rick Teitelman – a friend of justice

Missouri Supreme Court Judge Richard B. Teitelman died in his sleep this week. He was 69.

Rick was a friend of the Journalism Review, a friend of mine and, most important, a friend of equal justice.

When Rick graduated from Washington University Law School he couldn’t find a job.  There wasn’t much of a market for a legally blind lawyer, even if he was smart enough to have gotten a perfect 800 on his SATs in high school.  Rick started his own law office, taking a bus to appointments.

In the mid-1970s he went to work for Legal Services and rose to lead the program in St. Louis.  I got to know Rick around that time. I was writing for the Post-Dispatch about Ronald Reagan’s attempt to kill  the Legal Services program.  Rick was a great source of news and never failed to write a typed note when he thought a story was well-done – a nice reward for reporters used to nastygrams.  Teitelman also liked to take reporters to a downtown deli where he dined on delicacies like liver and onions.

On the editorial page of the Post-Dispatch we called for Teitelman’s appointment to the Missouri Supreme Court.  Gov. Bob Holden agreed and appointed Teitelman in 2002.  He became the first Jewish and legally blind member of the court.  In 2004 he withstood a campaign to block his retention for being too liberal.  Our editorial condemned the right-wing “smear campaign.”

Every time we planned a fundraiser for the Journalism Review, Teitelman was there lending his support. A month ago, Teitelman attended a lunch with friends of Saint Louis University law school where I presented a GJR project on Ferguson.  Teitelman spoke candidly about what lawyers and judges could do to bring about reforms.  That passion for equal justice still burned.

Judge Richard Teitelman, liberal lion of Missouri Supreme Court, dies at 69

Here is the Supreme Court’s obituary:



                        JUDGE RICHARD B. TEITELMAN

JEFFERSON CITY, Mo. – It is with great sadness that the Supreme Court of

Missouri acknowledges the passing of its beloved colleague, Judge Richard 

Teitelman, athis home today in St. Louis. Judge Teitelman began his service 

on the state’s high court in March 2002 and served as its chief

justice from July 2011 through June 2013. He was 69. In honor of Judge

Teitelman, the Court cancelled oral arguments scheduled for today.

“Judge Teitelman had immense compassion for others,” Chief Justice

Breckenridge said. “He dedicated himself, both personally and

professionally, to ensuring that every person receives justice in our

courts. He was always aware that each of his decisions impacted and changed

the lives of real people, and he worked tirelessly to ensure that each

decision was fair and just. He delighted in talking to both lawyers and the

lay community about the law, and delighted in the success of his fellow

lawyers and judges.”

Breckenridge continued, “Judge Teitelman’s love of justice and the law was

paralleled only by his love of people. He provided support and

encouragement to his friends in the things that mattered most to them. And

he considered almost everyone he met a friend. He had a remarkable ability

to retain and recall information about people and events, and to find

connections with each of them. His seemingly boundless energy, enthusiasm,

and empathy strengthened and gave hope to those around him in thoughtful

and meaningful ways. Judge Teitelman will be missed tremendously.”

Teitelman was born September 25, 1947, in Philadelphia. He received his

bachelor’s degree in mathematics in 1969 from the University of

Pennsylvania and his law degree in 1973 from the Washington University

School of Law in St. Louis. He ran his own solo law practice until joining

Legal Services of Eastern Missouri in St. Louis in 1975, working his way up

through that organization’s leadership and serving almost two decades as

its executive director and general counsel. He served as a judge of the

Missouri Court of Appeals, Eastern District, from January 1998 through

February 2002.

Teitelman was Missouri’s first Jewish and first legally blind judge. At his

formal swearing-in ceremony at the Supreme Court, Teitelman paraphrased

Helen Keller in telling the crowd, “For a committed life, one has to have

fidelity to a noble purpose, and for me, that purpose has been the fight

for justice.”  But he added, “This installation is not about me. It is

about the people I have worked with and the people I have served.”

Supreme Court Clerk Bill L. Thompson said, “Although legally blind, Judge

Teitelman’s vision of compassion, generosity, and encouragement of others

was perfect.”

Teitelman had a long commitment to public service and bar activities. He

was a member of numerous local bar associations throughout the state and,

for the Bar Association of Metropolitan St. Louis, served as chair of its

young lawyers section, chair of its trial section, secretary, vice

president and president and also served as president of its bar foundation.

At The Missouri Bar, Teitelman served as chair of the disabled, minority

and diversity law committee of the young lawyers’ section, chair of the

delivery of legal services committee, and member of both the board of

governors and its executive committee. He was elected vice president and

president-elect, the position he held at the time he was appointed to the

Supreme Court. At the national level, Teitelman was very active with the

American Bar Association. He was a past chair of its standing commission on

mental and physical disability law, a member of its standing committee on

pro bono and public service, a judicial division member of the standing

committee on minorities in the judiciary, and was a lifetime sustaining

fellow of the American Bar Foundation. He also participated in a number of

civic and charitable activities, both in St. Louis as well as at the state

and national levels. He also was a member of the Supreme Court of Missouri

Historical Society.

In addition, Teitelman was honored with numerous awards throughout his

career, including The Missouri Bar’s President’s Award, Spurgeon Smithson

Award and Purcell Award for Professionalism; awards from the Bar

Association of Metropolitan St. Louis and Mound City Bar Association; and

awards from the National Conference of Metropolitan Courts, the American

Jewish Congress, the American Council for the Blind and the St. Louis

Society for the Blind.

A memorial service for Judge Teitelman is scheduled for 2 p.m. Thursday,

December 1 at Graham Memorial Chapel on the Washington University campus in

St. Louis. Arrangements are under the direction of Berger Memorial Chapel,

9430 Olive Boulevard, St. Louis.

Media and courts failed on Ferguson

The Ferguson story of racial inequality in St. Louis and the nation was largely ignored by the media and judicial system before Michael Brown was killed in 2014. And the Missouri Supreme Court has done little to impose reform since then.

That was the consensus of lawyers, journalists and community activists who came together Sept. 14 to talk about social media and the Pulitzer Prize tradition. The panel at Saint Louis University Law School was part of the two-day Millstone lecture series focusing on the social justice tradition of the Pulitzer Prizes during the prizes’ 100th anniversary. The lecture series honors the late James C. Millstone, a senior news editor of the St. Louis Post-Dispatch and mentor of a generation of reporters before his death in 1992.

Kevin Horrigan, the Post-Dispatch’s deputy editorial editor and a Pulitzer finalist for his work on Ferguson, said he regretted how late the media were to the story.

“One of my big regrets is that we as a newspaper didn’t become continually and consistently engaged in the Ferguson story before Ferguson happened…. This problem is not new, it’s decades old. It is a fundamental and tragic missed opportunity for the Post-Dispatch…. We got pieces of it along the way. Jeremy (Kohler) wrote some terrific stories about cops floating from jurisdiction to jurisdiction. We’ve written about fire districts. We wrote editorials about restrictive covenants. But we never engaged on a persistent, crusading aspect of this story until post-Ferguson. And that’s not really in the Pulitzer tradition. The Pulitzer Tradition was to crusade against injustices. We missed it, we let it go…. And the sad fact is that we are less likely because of economic forces to be able to do the sort of loud, persistent and relentless reporting on this story that it deserves.”

Kohler, an investigative reporter at the Post-Dispatch, pointed out that he and others had written stories of police and court corruption in the years before the death of Michael Brown on Aug. 9, 2014. There were stories about the mishandling of rape cases and police who moved from municipality to municipality. But he agreed ArchCity Defenders was first to the story of the municipal court injustices that wrecked peoples lives.

Thomas Harvey, director of ArchCity, said the Ferguson story writ large was a “story that its been ongoing in America since its inception. It is a story we have largely sought to ignore. It is a story that that any reporter, any person, any lawyer, any law student could have just walked out to a court or a shelter or a jail and heard about any day…. And that is a story of the way the legal system systematically deprives mostly African-American…of their civil rights, creates and exacerbates poverty…. We see the results of these intentional acts right here in our back yard and we have failed to do anything about it.”

It’s a story about “folks that were stopped by one of the 67 police departments in the region, went to one of our 81 courts in the region…….were told that if they didn’t come back with the money they owed they would be arrested and jailed….They are arrested, they are jailed, they are told that to buy their freedom they’ve got to come up with the money that everyone knows they don’t have or they can’t get out. And then they call their family members and their friends and they say can you give me money….so i can get out of this cage and get back to my children.”

Families “scrape together every penny they had and try to get their loved one out of jail…then they were told at that moment that they were wanted in another town so instead of being free they were moved from one cage to another cage….. Five people in those jails have hanged themselves….”

Hand in the cookie jar

The journalists and lawyers on the panel agreed that the Missouri Supreme Court had failed to make meaningful reforms.

Horrigan said, “since the death of Michael Brown…there has been no major permanent change in St. Louis municipal courts. There have been some cosmetic changes. But the state Supreme Court has not done what it logically and morally ought to do which is to dissolve all 81 municipal courts and put them under the auspices of the county circuit court. And why is that – because there are entrenched interests, the traffic bar, the municipal court bar.”

Kohler agreed. “The Supreme Court has not done anything to change. The judges themselves, the courts themselves, the police departments themselves have been shamed temporarily…but there is not structure in place to make that permanent.”

St. Louis is a “frustrating place” for reform, he said. “St. Louis is not the kind of place that likes to admit that it did something wrong. It doesn’t seem to get embarrassed by itself . St. Louis gets stuck with its hand in the cookie jar and it says this is always the way we get cookies.”

Tony Messenger, the Post-Dispatch columnist and former editorial editor who also was a Pulitzer finalist for his work on Ferguson, described the injustice of the Ferguson municipal court that he had witnessed the morning of the panel.

Stephanie E. Karr, the former Ferguson city attorney who resigned under fire, was back in court serving as city attorney because no successor had been appointed. She insisted that Navy veteran Fred Watson plead guilty to a minor littering charge, claiming that his previous lawyer had agreed to the plea – even though there is no record of that plea agreement.

Watson’s case was highlighted in the Justice Department’s report of unconstitutional police practices in Ferguson. A police officer stopped Watson after he had finished playing basketball and insisted on an identification. When Watson refused, the officer arrested him and threw in other charges, such as the much-abused charge of failure to comply with a police order. Because of the arrest, Watson lost his security clearance and his job in cybersecurity at the National Geospatial-Intelligence Agency.

Has anything changed?

Even though Messenger acknowledges that “a lot hasn’t changed,” his approach to his job has.

“One of the things I tell people is that what Ferguson did to me is that it changed the rest of my career…. A woman wrote me and told me that she is tired of me using the F-word – the F-word is Ferguson. Ferguson, the F-word is not going away…. This is the story I will write about for the rest of my career…. It is going to take us that long: It has been two years and the Supreme Court has done nothing. It’s been two years and we still have 81 municipal courts. It’s been two years and Stephanie Karr is still the prosecutor in Ferguson even though she says she resigned… We haven’t solved this in two years and we’re not going to solve it in four years or five years or 10 years. It’s going to take us 20 years.”

On the hopeful side, Messenger said that “government officials are using the lens of racial equity more than they ever have in this city’s history.”

There was evidence of change from one questioner in the audience – Marie Kenyon, director of the new Peace and Justice Commission for the Archdiocese of St. Louis.

The “Archdiocese hadn’t had a peace and justice commission for 20 years,” she said. “Cardinal Rigali said maybe we don’t need one of those….. It was only after the Ferguson uprising that Archbishop (Robert J.) Carlson said oh, maybe the church better looking into this too…. Now at the chancery, where I work, we’re finally talking about something other than pro-life.”

Nicole Hudson, leader of the Forward Through Ferguson group following up on the 189 calls for action of the Ferguson Commission, said she had seen activists come together in ways that hadn’t happened before Ferguson.

The goal, she said, was “a state of racial equity, which is a state where outcomes are no longer determined by race.” St. Louis is far from that, she added. Infant mortality among blacks has declined in recent years but it is now three times as great as for whites, up from twice as great a few decades ago.

Hudson and Harvey emphasized nothing would have changed without the “uprising in the streets.” But she added that many of the people of Ferguson are “emotionally spent.”

Twitter – the good and bad

Horrigan said “Twitter is as good as the person who tweets. Often it is a source rumor and innuendo and falsehood. The difference between mainstream journalism and social media is standards and my God, if we don’t abide by standards we’re really in trouble.”

Kohler agreed Twitter has its limitations because it is loaded with journalists and activists. He thinks Facebook is a better way to engage the community.

Harvey, though, credited Twitter with enabling him to “get direct access to journalists all of the country….something that couldn’t have happened before Twitter. So there are productive, important ways you get outside of the gatekeeping of decision-making about what is written about your community.”

Hudson said Twitter was “one of the places that keeps me accountable to the unvoiced…. It is really useful tool to stay accountable and keep my mind open.”

Messenger agreed that Twitter “helped drive the narrative of Ferguson,” but added, “It’s a good thing…..I connected with communities and sources I might not have connected with, specifically people of color. I found them on Twitter….I often used Twitter more than personal contact to get to know people and perspectives….

“There was an opportunity for journalists to connect with people that sometimes – to use the metaphor of the ivory tower and the editorial page – that we sometimes were not connecting to.”

This American Life distorts St. Louis school desegregation history

Last summer, one year after Michael Brown died in Ferguson, This American Life ran a powerful program on the failed Normandy school district from which Brown graduated.

Much of the program, reported by Nikole Hannah-Jones, critiqued the racially tinged protests of St. Charles County parents who didn’t want black students from Normandy to transfer to their mostly white schools.  This past February, the program received a George Polk award, one of the nation’s highest journalism prizes.

But there was an important mistake in her report — one that the PRX program declined for weeks to correct. Last weekend, when this story was about to be published, producer Hannah Joffe-Walt agreed there should be a clarification.  Still, the program’s story about school desegregation in St. Louis remains misleading.

In her initial report, Hannah-Jones incorrectly reported state officials had killed St. Louis’ city-county school desegregation program in 1999, when the Missouri Legislature had actually done the opposite. State officials passed a remarkable bi-partisan law continuing the program into the future. The transfer program still operates today.

The supposed demise of the program fit the overall narrative of the episode laid out in an introductory segment with Hannah-Jones and Ira Glass, host of This American Life.  In that segment, Hannah-Jones said America had abandoned the one educational tool that had improved educational results — integration.

State officials “killing” St. Louis’ desegregation program in 1999 fit that narrative while the true story of state officials preserving St. Louis’ model school desegregation program in 1999 did not.


The nation’s largest, most successful program

Here’s the actual story of what happened in 1999.  It is a story of how St. Louis preserved the largest, most ingenious, most successful, most costly and most long-lasting urban-suburban school desegregation program in the country.  The urban-suburban school desegregation plan began in the 1980s after an African-American mother, Minnie Liddell, sued to get a better school for her son, Craton.

NAACP lawyer William L. Taylor, one of the leading school desegregation lawyers in the country, represented Liddell and helped create the inter-district transfer program.  Under it as many as 15,000 African-American students from the City of St. Louis transferred to suburban schools in St. Louis County each year.  A smaller number of Caucasian students from the suburbs attended magnet schools in the city.

U.S. District Judge William L. Hungate, a savvy former congressman, used a carrot-and-stick approach to alternately bribe and bully suburban school districts to voluntarily join the unique plan brought to fruition by special master, D. Bruce La Pierre, a law professor at Washington University.

The stick was Hungate’s threat to merge all of the county districts with the city district, based on strong evidence that county districts had been complicit in the city’s segregation. Suburban school districts could voluntarily accept black students from the city and avoid the stick. In turn, they were rewarded by a carrot – state money that Hungate was able to offer suburban districts for each transfer student accepted. Because the courts had found the state to be the “primary constitutional wrong-doer” in segregating the schools, Hungate could force the state to pay for most desegregation costs.

For the next two decades Attorney Generals John Ashcroft and Jay Nixon — one a Republican and one a Democrat — fought never-ending Supreme Court battles to kill the transfer program.  Both used opposition to the program for political gain.  But they failed in court.

Meanwhile, tens of thousands of black students from the City of St. Louis attended suburban schools.  Hannah-Jones reported accurately: “A generation of black Saint Louis residents, tens of thousands of them, remember the Saint Louis desegregation program…as a great opportunity. They’ll be the first to tell you that it was hard, but also that it was necessary. And for the most part, it worked. In the schools where white families chose to stay, test scores for black transfer students rose. They were more likely to graduate and go to college. After years of resistance, Saint Louis had created the largest and most successful metro-wide desegregation program in the country.”

So far, so good. But then, in her next sentence Hannah-Jones mistakenly said: “And then state officials killed it. In 1999, just 16 years after real desegregation came to Saint Louis, mandatory desegregation ended…This is what happened in cities all over. With Brown v. Board of Education, we as a nation decided that segregated schooling violated the constitutional right of black children. We promised that we would fix this wrong. And when it proved difficult, as we knew it would be, we said integration failed instead of the truth, which is that it was working. But we decided it wasn’t worth the trouble.”

What actually happened in 1999 was that community leaders, political officials and the citizens of St. Louis came together and decided the transfer program was worthwhile and working; they took extraordinary steps to continue it.


The Political Miracle of 1999

In 1998 Attorney General Nixon went to court trying to end the program, but U.S. District Judge George Gunn Jr. wouldn’t go along. Instead, he appointed William Danforth, former chancellor of Washington University, to find a solution. The result was a settlement, approved by the Missouri Legislature, to continue the transfer program indefinitely. This settlement was built on three extraordinary accomplishments.

First, a coalition of rural and urban legislators in the state legislature combined to pass a law approving the continuation of the cross-district transfer program, even though the program had been politically unpopular in parts of the state.

Second, community leaders of St. Louis pressed hard for continuation of the program. Danforth brought along the St. Louis business community, obtaining the support of Civic Progress, St. Louis’ most powerful business leaders. He told leaders the program had worked, resulting in much higher graduation rates for transferring black students.

Third, taxophobic citizens of St. Louis voted to levy a two-thirds of a cent tax on themselves.

In announcing the settlement of the case, Danforth called it “a historic day” for St. Louis.  Minnie Liddell, the heroic mother whose suit had led to the desegregation plan said, “All I can say is, `Yay, St. Louis.’ This has been a long time coming, yet we have just begun. I’m glad I lived to see a settlement in the case.”

Liddell’s lawyer, Taylor, wrote that St. Louis’ settlement was the best in the nation.  And nobody knew better than Taylor, who had been involved in many of the nation’s biggest school desegregation battles after having served as general counsel of the U.S. Commission on Civil Rights and then vice chair of The Leadership Conference on Civil and Human Rights.

“In many communities around the nation, courts are declaring an end to judicially supervised school desegregation and to the mandated subsidies for improved education that are often part of the remedy. But in St. Louis, the state Legislature has offered a financial package that will enable educational opportunity programs to continue for 10 years or more,” he said.

“Both from a financial and an educational standpoint, the St. Louis settlement is the best of any school district in the nation. The state funding will make possible continuation of the voluntary inter-district transfer program and the city magnet program. Both of these programs have enabled African-American city students to complete high school and go on to college at far greater rates than they have in the past.”

Former Rep. William L. Clay, who had led St. Louis’s seminal civil rights protest against the Jefferson Bank, inserted remarks in the Congressional Record: “When the State sought to end its financing of the remedy in the early 1990’s many feared that the opportunities that had been afforded children would end as had happened elsewhere. But an extraordinary thing happened. The Missouri State legislature voted funds sufficient to continue the programs…for at least ten more years. The legislature insisted that the city of St. Louis contribute financially by raising its sales and property taxes. Many feared that this would not occur. But in February of this year the voters approved a sales tax increased by an almost 2-1 margin–and every Ward in the City–Black and White–voted for the tax increase.”

Clay attached to his remarks an editorial in the St. Louis Post-Dispatch headlined “Voting for a Miracle.”

“Tuesday’s overwhelming vote in favor of the sales tax increase for city schools is the latest miracle in a year of political miracles. The first was getting the Missouri Legislature to pass a law to continue making extra payments to the St. Louis schools after the end of court-ordered desegregation. The second was Dr. William H. Danforth’s trick of getting the platoon of lawyers to stop squabbling and hammer out a deal. The third was persuading the people of St. Louis to lay aside their opposition to taxes and lack of confidence in the schools and, instead, to tax themselves in hopes of a better future.

“This feat makes us the first place in the nation where the democratic institutions of government found a way to preserve the gains of the era of desegregation while making it possible to improve the education of all children. Imagine. This happened in Missouri.”


Standing by the story

When I initially sent an email to This American Life pointing out its mistake, I received no response.  My email to Hannah-Jones never reached her because she had moved from ProPublica to the New York Times.

I wasn’t the only one to raise a question. The Washington Monthly quoted an expert on school desegregation, Rick Kahlenberg of the Century Foundation, pointing out the same mistake.  “The St. Louis inter-district integration program was not ‘killed’ in 1999, as reported on the show, notes Century Foundation education guru Rick Kahlenberg (who otherwise finds much to admire in the podcast). It continues to exist to this day, with some 4,500 St. Louis students transferring to suburban schools.”

After the Polk award, I brought the mistake up again because that honor ensured even more people would listen to the flawed account of desegregation in St. Louis.

Hannah-Jones responded in emails that she had not known of Kahlenberg’s or my criticism.  She added that she disagreed with it. In a February email she wrote, “…we at TAL disagree that this is an error. In the show, we say the mandatory program ended. The settlement ended court-mandated desegregation, just as we said it did. We fact-checked it and we think it is, in fact, accurate.”

Joffe-Walt, the producer who worked with Hannah-Jones, apologized for not having responded sooner.  She wrote in an email: “I did a search on our listener comments and see that you wrote in, which we regrettably missed at the time. We were overwhelmed with the response to those shows and I personally did not see this one. So first, I apologize for the delay in getting back to you.

“In terms of the content of your message, I wanted to respond as I wish I had many months ago.  The existence of the current voluntary program was something we discussed in the writing process — writing that was reviewed in edits and fact checking.  While I understand the concern you are raising, I see it differently, and I feel comfortable with the language we used.

“Here is why: We do say that the state ended mandatory desegregation. This is true….Second, we are telling the story of a modern day mandatory program, and comparing it to the original mandatory program, so it is appropriate to distinguish between voluntary and mandatory.  They are different animals entirely, as is illustrated in the very scene where these sentences appear.

“In the section you are pointing to, Nikole is giving a 60 year history of integration efforts in one paragraph.  She is highlighting the need for mandatory integration in the face of enormous resistance from white, suburban St. Louis.  In that context, it is completely reasonable to underline the long lasting consequences of the state’s decision to get rid of the mandatory program. St Louis schools are racially segregated and white suburban resistance continues.  Because of that ongoing resistance, which you hear immediately before and after that paragraph, it is clear that there is a fundamental difference between a program that is mandatory and one that is voluntary program.”


Voluntary, Not Mandatory

The problem with Joffe-Walt’s response is that the city-county program she and the program praised was always “voluntary.”  The state funding was mandatory but not the participation of the suburban school districts.  The 1999 agreement replaced court-mandated funding with public funding the people of Missouri provided through their representatives and at the ballot box.

Wasn’t it better to for Missouri to democratically provide the funding indefinitely rather than to be forced to provide it for some limited period of time?  And how does this unique democratic act figure into the narrative of the This American Life program that there was the “need for mandatory integration in the face of enormous resistance from white, suburban St. Louis.”   There was no “enormous resistance” in 1999.

When Joffe-Walt was presented with the celebratory statements of Rep. Clay, Bill Taylor and Minnie Liddell, she at first did not reply.  When pressed, she asked for more time.  When told that a story would be running, she sent an email announcing a clarification. She wrote:

“While I appreciate the details you are citing, our show goes out to a national audience and most of our listeners have little or no awareness of the St Louis case.  We did not think it made sense to go into the level of detail and context that, while interesting, shifts focus away from the larger story (which is complicated itself)!  That said, we do find that the language about the continuation of a voluntary program is worth mentioning and so will clarify the language in this way:

“The sentence will now read: ‘After years of resistance, Saint Louis had created the largest and most successful metro-wide desegregation program in the country. But from the moment it started, state officials worked kill it. And then in 1999, just 16 years after real desegregation came to Saint Louis, the desegregation order ended. Just a much smaller voluntary desegregation program remains.’”

As clarified, the show still says nothing about the extraordinary efforts of Missouri officials, St. Louis leaders and civil rights leaders to save the desegregation program.

For her part, Hannah-Jones wrote in an email that she stands by the story as broadcast. “Of course we stand by the story,” she said. “One sentence that you don’t agree with does not change that.”

There is plenty of racial history that St. Louis and Missouri should be ashamed of. That includes Ashcroft’s and Nixon’s decades-long fight to end the city-county program.  But 1999, when the urban-suburban desegregation program was saved rather than killed, is a bright moment in St. Louis’ and Missouri’s racial history.  It doesn’t fit into This American Life’s narrative of St. Louis and the country giving up on desegregation.  That’s too bad because the story would have been richer and more nuanced had it been based on the real history of citizens and politicians coming together to create better, more integrated schools.

Ferguson – An Arab Spring moment

The Ferguson story was an Arab Spring moment when social media inspired social change. It rejuvenated the civil rights movement and started a new national conversation about race and policing.

In remarks to the Ethical Society in St. Louis on Oct. 25, GJR publisher William H. Freivogel looked back at the impact of social media on Ferguson.

I’ve been a reporter for almost 50 years, covering free speech, civil rights and the First Amendment most that time.  I’ve covered the U.S. Supreme Court, presidential campaigns, the attempted assassination of Ronald Reagan, police brutality in the Maplewood police department, dioxin contamination of Missouri and the successful effort to keep the St. Louis-St. Louis County school desegregation program alive.

But Ferguson is the biggest, most important story I’ve covered.

We may look back on Ferguson as the beginning of the rebirth of the civil rights movement.  We may also see it as America’s Arab Spring when it comes to social media setting the agenda and spurring political change.  It’s safe to say Ferguson would not have played out as it did had it not been for Twitter.

The subject of the Ferguson story is the most important story of this nation’s life – our effort to escape the sins of slavery and segregation and to perfect our imperfect experiment in equality.  The Justice Department’s report on Ferguson’s police and municipal court system demonstrates there are a lot of imperfections.  It found racist, unconstitutional police practice in Ferguson – practices that most likely exist in thousands of Fergusons around the nation.  Those other towns just haven’t been under the Department of Justice’s microscope.

The reform of the municipal courts in St. Louis County is also a reminder that practices fair in form – say the issuance of a bench warrant when a traffic violator fails to appear in court – can wreck poor people’s lives and turn our municipal holdovers into something approximating debtors’ prisons.

One of the main points I would like to make this morning is Ferguson is complicated, with a capital C.

It’s like many ethical questions that don’t have clear right and wrong answers.  Answers aren’t found rushing to conclusions based on ideology and group affiliation, divorced from facts.  Instead, judgments should be based on core values, historical context and a search for facts.

 Let me give you a dozen examples of how complicated Ferguson is:

1.   Social media broke almost all of the news about Ferguson but they also spread most of the myths and hate speech.

2.   Social media became a way for protesters to reach out to a national and international audience, but the national media often got the story wrong.

3.   At the same time that social media became a way to reach out for a broader audience, they also spread early, inaccurate rumors and stories spread, leading to unreliable statements from supposed eyewitnesses to the shooting of Michael Brown.

4.   The Hands Up, Don’t Shoot story quickly took hold in the nation and the world, but it turned out not to be substantiated.

5.   Although a myth, Hands Up Don’t Shoot became a powerful force for addressing a long, festering problem of white police officers shooting unarmed black suspects and of police allowing minor stops to escalate into life-or-death situations.

6.   The powerful call for civil rights that emerged from Ferguson often failed to recognize Officer Darren Wilson had civil rights too, most specifically a constitutional right of due process.

7.   Ferguson may have been the rebirth of the nation’s civil rights movement, but this isn’t our generation’s civil rights movement. This is a movement of young people who have little regard for the Al Sharptons and Jesse Jacksons of the past.  The same is true across racial lines.  One of the most viewed tweeters about Ferguson, Sarah Kendzior, tweeted recently, “All around me people of my generation drowning, while boomers toss out useless life vests of their memories.”

8.   Ministers in St. Louis were among the most outspoken leaders in the protest, but they too may have gone overboard in chanting for police officers to “repent.”

9.   St. Louis County Prosecuting Attorney Bob McCulloch inspired little confidence that the investigation of the shooting would be fair and complete; but McCulloch’s release of grand jury testimony and his inclusion of exculpatory evidence addressed the most common civil rights criticisms of the grand jury process.

10. Even though there wasn’t enough evidence to convict Wilson on criminal charges, that doesn’t mean Wilson handled the encounter with Brown properly; he didn’t.

11. Even though the killing of Michael Brown had nothing to do with municipal courts, the reforms in the municipal court system that followed are among the most important reforms that have grown out of Ferguson.

12. That said, even though the legislation passed by the Missouri Legislature last year to reform municipal courts was called the Ferguson reform bill, it has little impact on Ferguson and its greatest impact may be to put out of business the tiny municipalities with African-American leadership.

13. Just as the press was slow in recognizing the myth of Hands Up, Don’t Shoot, it also failed to recognize the magnitude of the unconstitutional policing in Ferguson until the Justice Department revealed it excruciating detail.

Ferguson – symbol for injustice

The question I’m asked most often is why Ferguson went in a few days during the summer of 2014 from being the obscure name of a quiet, residentially integrated suburb to a word known around the world as a symbol for everything wrong with America.

Here are some of the key factors that turned the shooting of Michael Brown from a small story that probably wouldn’t have made the national news or the local front page into a national crisis.

1)   Leaving Michael Brown dead on the street for four hours.  The Justice Department after-action assessment released this September stressed the role this four-hour period played in angering the crowd – although the report also pointed out that shots were fired at the police performing the forensic analysis and that the results of the forensics were crucial to the resolution to the case.

2)   The failure to immediately name the police officer who shot Brown. Did the press have a right to the name?  Probably not. But in Cincinnati officials have learned from past shooting like Ferguson and name the officer right away and release any video.

3)   The similar deaths of other unarmed black men at the hands of police, creating a critical mass of tragedies of this kind – Staten Island, Cleveland, North Charleston, Tulsa, Baltimore.

4)   Police with dogs, reminiscent of Bull Connor.  The Justice Department after action report stressed the role of dogs in angering demonstrators and urged that police departments not use dogs in crowd control.

5)   Police in military gear with military vehicles and red lasers pointed at protesters’ chests.

6)   Failure to respect the First Amendment rights of citizens and journalists.  Police tried to ban night-time protests, tried to force protesters to keep walking, overused tear gas and arrested reporters, hassling and threatening others.

7)   A whirlwind of social media, cable and national and local media, often failing to check out facts before they were tweeted or reported to the nation. #ferguson flew by on the screen faster than it could be read – and far faster than a community or nation could comprehend.

8)   Most importantly, Ferguson reminded us we haven’t solved many of the racial problems we hoped we had gotten past.  Mike Brown’s high school was broken and unaccredited.  He lived in a segregated housing project.  And the town of Ferguson was engaged in racist policing.

Violating the First Amendment

Many of the violations of constitutional rights occurred in the couple of days after Brown’s shooting. Five days after the shooting, Gregory Magarian, constitutional law expert at Washington University law school put it this way in a story for St. Louis Public Radio: “Police and officials in Ferguson have declared war on the First Amendment. Since Sunday’s police shooting of an unarmed student, Michael Brown, local officials and law enforcement have blatantly violated three core First Amendment principles: our right to engage in peaceful political protest, the importance of open government; and the freedom of the press. In the space of one evening, police in Ferguson conducted a master class in destroying the freedom of the press.”

Reporters from the Washington Post and Huffington Post had been arrested in a McDonald’s restaurant when they did not quickly obey a police order to leave.  St. Louis alderman Antonio French, whose blogs from the protests have been journalistic, was arrested for not leaving a protest that had been declared an illegal assembly. And police fired tear gas close to an Al Jazeera America crew setting up for a report.

PEN America released a report in October documenting 52 instances of infringement of journalists’ rights, including 21 arrests. The other instances of interference included 13 incidents of journalists threatened with guns or bodily harm, 7 who faced tear gas, rubber bullets and bean bag rounds, and 11 instances where police obstructed reporters. PEN noted freedom of expression and the press are not just rights guaranteed by the First Amendment but universal rights guaranteed by Article 19 of the International Covenant on Civil and Political Rights

The main abuses of the rights of protesters and the press were:

1)    Trying to enforce a rule that required protesters to keep moving instead of stopping to assemble – the so-called 5 second rule.   A federal court ruled that policy unconstitutional after a suit by the local ACLU.

2)    Overuse of tear gas.  A federal court ruled police did not follow strict protocols for when tear gas is appropriate, failing to give proper warnings and failing to consider whether the crowd had ways of escaping the gas.

3)    Threatening to arrest reporters and demonstrators who recorded the officers’ actions. Police don’t have the authority to make that threat.  It is uniformly improper for police to stop photography, tell journalists to turn off their cameras or try to make journalists erase photographs.  The public is entitled to see with its own eyes, through media photography, whatever is happening.

Press’ Mistakes

I’ve dwelled so far on the mistakes made by law enforcement.  But there also were mistakes by the media – both traditional and social.  Here are a few examples:

–      First example: Fox misreported Brown had broken Officer Wilson’s eye socket.

–       Second example: Ferguson was portrayed as a symbol of segregation and white flight – a ring of fire around St. Louis, the New York Times said – when Ferguson actually is one of the most residentially integrated suburbs in an otherwise residentially segregated St. Louis area.

–       Third example: The New York Times committed journalistic malpractice by reporting the name of the street where Darren Wilson had lived and then refused to admit to the ethical breach.

–       Fourth example: ProPublica published an influential data analysis concluding young African American men were 21 times more likely to be killed by police than their white counterparts in the past three years.

 Most of the mainstream media picked up the report as gospel.  Few paid attention to the work of Peter Moskos, a criminologist at John Jay, pointing out the disparity was so large partly because of the way ProPublica sliced the data.

Looking at the bigger, 15-year picture, Moskos found black youths were about 6 times more likely than white youths to be killed by officers – still too many but far from the 21 times.

–       Fifth example:  When the press showed up at McCulloch’s press conference the night of the decision not to indict, reporters put on the most pitiful performance I have ever seen.  Three reporters asked the same unanswerable question – what was the vote of the grand jurors.  One reporter began his question with a polemic about the law not protecting African-Americans. Reporters were offended McCulloch blamed social media for distortions, but the DOJ report released in March proved him right.

–       Example 6:  I had a personal window into one of the press’ failures.  I reported for St. Louis Public Radio that McCulloch had changed the legal instructions to the grand jury at the last minute – making it easier to indict Wilson, not harder – MSNBC’s Lawrence O’Donnell picked up the story, distorted what had happened, injected factual inaccuracies and claimed it was a reason for a new grand jury.  O’Donnell’s distortions were picked up as gospel by a liberal echo chamber.

Hands Up, Don’t Shoot

Overall, much of the national media followed a narrative trail that prejudged Wilson as guilty based on initial, unreliable eyewitness accounts to the media.  The story of the gentle giant on his way to college who had his hands up in a don’t shoot surrender mode and who was supposedly shot in the back by police – didn’t hold up under scrutiny.

The same day the Justice Dept. issued its stinging indictment of the unconstitutional police practices in Ferguson, it issued another report effectively clearing Wilson in Brown’s death.  It turned out not one witness had heard Brown say “don’t shoot” and none of the 22 witnesses who said Brown’s hands were up when he was shot was found to be credible.  Eight admitted lying, another admitted hallucinating. Others said they just wanted to be part of something important for the neighborhood.

The DOJ report described the way in which the media contributed to the creation of this myth. The story of the Jefferson County contractors is a good illustration:

A month after Wilson killed Brown, CNN broadcast what looked like a blockbuster “exclusive.” It was a videotape of two white construction workers who said Brown had his hands up when killed.  CNN reported the video was taken in “the final moments of the shooting.” One worker even gestures with his hands up.

At MSNBC, Chris Hayes carried a long report and Lawrence O’Donnell followed up. Vox had a story as did the Washington Post. Glenn Greenwald’s The Intercept included an account of the workers in its summary of evidence against Wilson entitled, “Down Outright Murder.”

But instead of a game changer or evidence of a crime – as Jeffrey Toobin put it on CNN – the contractors turned out to be two of a score of unreliable witnesses and the clearest example of how the media helped create the “Hands Up, Don’t Shoot” myth.

The video was not taken in “the final moments of the shooting,” as CNN reported.  Nor were the accounts of the contractors credible.

The man who thrusts his hands in the air told a TV station that three officers were at the scene when only Wilson was there. That was the tipoff error that convinced the Justice Department the men hadn’t seen what they claimed.  The other tipoffs were that the men’s view of the end of the encounter was blocked by a building and no one else heard Brown say over and over, OK OK OK.

It turned out that the person who shot the video of the contractors put down the Ipad and it picked up the conversation of people talking right after the incident who claimed to have seen the shooting but said things that couldn’t have happened.

The Washington Post rated the hands up don’t shoot story as 4 Pinocchios.

St. Louis’ Arab spring

Up to this point I’ve mostly focused on the mainstream media.  But that’s misleading because of the enormous impact of the social media.

I don’t think it is a stretch to say social media – Twitter in particular – had a greater impact on the public’s view of what happened in Ferguson than did the mainstream media.

Social media had many positive and negative impacts:

On the positive side:

–       Social media provided a way protesters could get their message out and not feel they were limited to what the traditional media would report.

–       Social media enabled the protesters to attract the attention of the national and international media, making Ferguson and all of the other ensuing police shootings of black men into big stories instead of small local ones.

–       Social media became the means by which a new generation of civil rights leaders began organizing and assuming power.

On the other hand:

–       Social media and citizen journalists created a chaotic scene where police couldn’t tell who was a reporter and who was a demonstrator.

–       The sheer volume of the tweets added to the chaos. Five days after the shooting of Michael Brown. Twitter users had shared 3,648,032 and another 3.5 million on the 6th day.

–       The rumors about Hands up don’t shoot were magnified by social media.

–       Although the main impact of social media was to promote the protesters’ cause, there were also many racist posting on sites like yic yack.


Anonymous was one of the most poisonous of the online media – misidentifying the shooter and then claiming to name the officers in the offending department – but naming the police in Florissant, not Ferguson.

Livestreaming video became especially important, but once again could distort.  Bassem Masri was identified by the Sunday New York Times as one of the citizen journalists most prominent in recording what happened in Ferguson.

One would think livestreaming would be the most objective way of reporting on a story – live video can’t lie – right?  The problem is the Masri and other live streamers would inject their own interpretations and sometimes diatribes.

 In one of Masri’s livestreams he is recording a shoving match at the St. Louis Board of Aldermen last winter when the board considered a civilian review board.  On the video someone is shouting a stream of profane, racist invective at Jeff Roorda, a white police union official.  It turns out the invective was coming from Masri himself.  Some citizen journalist.

In Baltimore lst spring, there was a replay of the way false rumors can spread like wildfire from angry demonstrators, careless reporters and livestreamers. Mike Tobin, a Fox correspondent broadcast having seen a police officer shoot a fleeing black man in the back.  Hannah Allam, a seasoned war correspondent, also sent out misleading tweets of what she thought she saw. Then a livestreamer, recording a chaotic Baltimore street scene, began repeating over and over on Ustream.

Baltimore police shot a man in the back and they’re macing people – Tweet it out.

Yet the police didn’t shoot anyone and the alleged victim in dire condition wasn’t shot.


Just because Hands Up Don’t Shoot was a myth does not mean there is no problem with police shooting unarmed blacks and Hispanics.

The killing of Michael Brown shouldn’t have happened.  Darren Wilson didn’t commit a crime, but he didn’t use the best police tactics either.  Many of the cases where black citizens are killed by white police officers are the result of officers confronting citizens over minor infractions and allowing the situation to escalate.

Wilson should have called for backup before confronting Brown, police experts say.  The Cleveland officers who killed the young man with the starter pistol drove up too aggressively and closely.  The confrontation with Eric Garner did not have to play out as it did.  The same can be said of the shooting in North Charleston, the confrontation with Sandra Bland and the Texas swimming pool confrontation.

I don’t believe I’m overstating things when I say Ferguson has helped revitalize the civil rights movement nationally, has focused new attention on the need for better training and discipline of police and has reminded the nation and the community that they haven’t come close to solving the problems of race.

–       The recommendations of the President’s Task Force on 21st Century Policing are promoting more training on community policing and de-escalation and more cameras on squad cars and officers.

–       The Justice Department’s detailed studies of the way law enforcement responded to the disturbances in Ferguson provides lessons for police – don’t use police dogs to control demonstrators, don’t use military equipment to shine laser sites on demonstrators, don’t use flashbangs, warn protesters before using tear gas and allow them a way to escape it and finally have a unified command structure.

–       The Justice Department’s review of St. Louis County policing also makes important recommendations for better training in de-escalation and community policing.

–       And the Ferguson Commission’s 100-plus recommendations provide a challenge to the St. Louis community to improve more than just policing but also housing and education.

No, we’re not in a post-racial society.  I don’t think any of us here will experience such a society.  The challenges that face us in St. Louis and as a nation are monumental.  The recommendations of the Ferguson Commission aren’t suddenly going to provide students with an equal education.  Brown v. Board outlawed separate but equal education 60 years ago, but the students in Normandy and so many other school districts are attending separate but unequal schools today.  Similarly, St. Louis remains one of the five or six most racially segregated places in the country when it comes to housing.  Remedying that is the work of decades, not years.

But there is quite a bit of evidence that one very good thing that grew out of Michael Brown’s tragic death is that St. Louis and the nation have woken up and recommitted themselves to equality and justice.

One year later: Media ignore their Ferguson failures

Editor’s Note: This is the publisher’s column from the current print edition of GJR.


The Justice Department’s twin reports on Ferguson this March raised two disturbing questions about the media:

• How did so many news organizations fail for so long to realize that “Hands Up, Don’t Shoot” was a myth?

• How did so many news organizations fail for so many years to uncover deeply unconstitutional police and court practices?

One would hope those questions would prompt soul-searching. For the most part, they haven’t. The national media are on to the next police shooting with no sign of introspection. False or misleading stories from last summer remain online uncorrected. Social media also barrel ahead, clinging to preconceived ideologies in a cyber-world that is often fact free.

Here are egregious media failures:

• National and local media fell for “eyewitnesses” who claimed to have seen Officer Darren Wilson shoot a surrendering Michael Brown. Many “witnesses” lied or fabricated stories.

• CNN irresponsibly broadcast “exclusive” video taken during “the final moments of the shooting” showing two white construction workers, one gesturing how Brown had his hands up. Legal analyst Jeffrey Toobin called it evidence of a “a cold-blooded murder.” But the video wasn’t from the time of the shooting and the construction workers’ stories were full of holes.

• Local media – KTVI and the Post-Dispatch – gave the construction workers story big play. But they didn’t make clear that one of the workers incorrectly claimed three officers were at the scene. Both workers later admitted they had not actually seen Brown fall because the corner of a building obstructed their view. Nor did any other witness confirm the workers’ claims that Brown repeatedly screamed, “OK. OK. OK.”  Those are the reasons the FBI discounted their statements.

• MSNBC’s Chris Hayes and Lawrence O’Donnell threw fuel on the fire day after day with biased reporting. O’Donnell ranted about St. Louis County Prosecuting Attorney Robert McCulloch changing the legal instructions during the grand jury, but his reports were full of errors.

• The New York Times committed journalistic malpractice by naming the street that Wilson lived on and then refusing to admit its mistake. KSDK did it too but apologized.

• Fox misreported that Brown had broken Wilson’s eye socket.

• Anonymous, the scary and inept anarchists, misidentified the police shooter and the shooter’s police department.

• The New York Times portrayed Ferguson as part of a segregated “Circle of Rage” around St. Louis, when Ferguson is actually one of the most residentially integrated places in St. Louis.

• ProPublica sliced and diced statistics in a misleading way that exaggerated how much more likely it was for a young African-American to be killed by police.


Ferguson was America’s Arab Spring for social media. For that reason, their failures are as important as the mainstream media’s.

A story in the May 10 New York Times magazine uncritically romanticized the tweeters and live-streamers who made a name for themselves. It called Bassem Masri, “perhaps Ferguson’s most famous live-streamer.” Masri is the person whose live-streaming videos include loud streams of invective and hate directed at police. Masri isn’t a citizen journalist but a polemicist linking Ferguson and anti-Israeli protesters.

The Times’ piece also told how DeRay Mckesson and Johnetta Elzie, two active bloggers, joined forces with Justin Hansford, a law professor at Saint Louis University, to critique the mainstream press in its “This Is the Movement” newsletter.

But the newsletter isn’t really media criticism. It’s a movement newsletter with headlines like: “This Is NOT St. Louis County, Missouri Prosecutor Robert McCulloch First ‘Racist Rodeo.’”

Not only have the media failed to critique themselves, they have gone right ahead making the same mistakes.

During the police unrest in Baltimore May 4, Fox’s Mike Tobin reported seeing an officer shoot a black man in the back. McClatchy war correspondent Hannah Allam tweeted, ‘We’ll be back under martial law tonight!’ EMTs take body away on stretcher.” Livestream’s “citizen journalist” barked out a tweet on the shooting. The reports were false.


Why did the press miss deeper stories of unconstitutional police and court practices? Sometimes the biggest stories are right in front of a reporter’s face but involve conditions that are taken for granted. That’s the case with the municipal court system in North St. Louis County. It took the ArchCity Defenders and allied law professors to show that procedures fair in form devastated the lives of poor, blacks who ended up in modern debtors’ prison.

The media did a good job of publicizing municipal court abuses. The one “Ferguson” reform emerging from the Missouri legislature limits how much traffic money each town can collect. But the press often forces reforms into a right-or-wrong framework, and it did with this story.

The new caps on municipal revenue hit the small predominantly black communities the hardest, with little impact in Ferguson. This take did not fit conveniently into the established media narrative and was mostly ignored in stories trumpeting the legislation as a “Ferguson reform.”


A personal note on former colleagues: The Post-Dispatch photo staff richly deserved the Pulitzer Prize it won for its brave, insightful, moving Ferguson photography. Tony Messenger and Kevin Horrigan, the P-D’s editorial editor and deputy, also deserved to be finalists for editorials that “brought insight and context to the national tragedy of Ferguson, MO, without losing sight of the community’s needs.”

St. Louisans sometimes don’t appreciate what a treasure they have had in the P-D editorial page as its Pulitzer commended work warned over the decades of Hitler, Vietnam, concealed weapons, civil liberties abuses and Missouri’s war on the Medicaid poor. It’s an editorial record with few peers.

Correction: An earlier version of this story stated that both construction workers claimed there were three officers at the scene. That claim was made by the worker interviewed by KTVI; the person interviewed by the Post-Dispatch did not mention multiple officers. Jeremy Kohler, the Post-Dispatch reporter, wrote in an email that he considered the worker he interviewed “credible at the time and I still do.”