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Donovan's Dilemma: Free Speech vs. Hate Speech in Bennington

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Fair Game is Seven Days’ weekly political column.
T.J. Donovan - JEB WALLACE-BRODEUR
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T.J. Donovan is getting the first big political test of his tenure as Vermont attorney general as he faces criticism over his handling of the Kiah Morris case, a touchy blend of racism, free speech and the state's reputation for tolerance.

Donovan is a rising star in Democratic politics, almost universally seen as a future candidate for governor or Congress. He is a scion of Burlington political royalty, the son of Rep. Johannah Leddy Donovan (D-Burlington), the nephew of former state senator James Leddy, and the grandson of Democratic politician and federal judge Bernard Leddy. He served for 10 years as Chittenden County state's attorney. The only hiccup in his political climb was his unsuccessful 2012 challenge of incumbent attorney general Bill Sorrell.

Morris was a two-term state representative from Bennington who withdrew from public office after claiming that she endured rampant racial harassment, including vandalism, burglary and abusive social media messages — and that local authorities failed to take her seriously.

Donovan believes he has followed the evidence and the rule of law but acknowledges that "people are angry with me" over his actions — or inactions. Some see Donovan as passing up a chance to stand for justice and ducking a confrontation with local authorities.

Shortly after Morris' resignation last September, Donovan began an investigation. On January 14, he announced in Bennington that there was insufficient evidence to support criminal charges of stalking, vandalism or burglary — and that he would not prosecute white nationalist Max Misch, who had conducted a campaign of online racial harassment against Morris.

At Donovan's press conference, Morris expressed her dismay at the outcome. "We did everything that we were told to do," she said at the time. "Reported everything, held nothing back and trusted in a system that, in the end, was insufficient and inept at addressing and repairing the harm done." The topper: Misch himself appeared at the event, as if to flaunt his freedom.

Morris declined to be interviewed for this column. She deferred to legal adviser Robert Appel, a Burlington attorney and former head of the Vermont Human Rights Commission. "She's been terrified. Her family's lives have been turned upside down," Appel said. "Where does it leave marginalized people who have had the courage to speak up?"

Like, for instance, the handful of people of color who serve in the Statehouse. Some of them share Morris' view that the system has failed her. "We would say, 'Why didn't the attorney general push the limits of the law?'" said Rep. Kevin "Coach" Christie (D-Hartford). "Sometimes you just have to bring it to court regardless of the outcome. A clear statement would have been made: We Vermonters do not tolerate this behavior."

Donovan sees himself as standing on principle. "I know it was an unpopular decision, but it was the right decision legally," he said in a Monday interview. "In this case, there was insufficient evidence that a crime could be proven."

There was evidence aplenty of racist messages — but those, he said, are protected by the First Amendment. "It's a pretty bright line test," he said. In order to warrant prosecution, there has to be "an explicit threat of harm." Misch's messages, while "demeaning and derogatory," were not overtly threatening, he added.

Perhaps. But that legal calculation leaves Morris feeling abandoned by local and state authorities. Is this a case in which justice and the law are at odds?

"It does feel like that," said Rep. Nader Hashim (D-Dummerston), a Boston native born to parents who emigrated from Egypt and Iran. "I've had to deal with racial harassment in the past and I've been let down."

He declined to discuss specifics. "Perhaps another time," he said. "It's a very long story."

Three weeks after Donovan's announcement, Misch was arrested for violating a 2018 law barring possession of high-capacity ammunition magazines. Donovan openly criticized Bennington police, who had learned of Misch's possible violation in October but did not report it to state authorities.

Donovan decided to take the lead in prosecuting Misch, a rare step for a relatively minor charge. "I would say it's generally unusual for an attorney general to be involved at a local level to this degree, but I think this is not the normal case," he said. When asked what made this an unusual case, he said, "The issue of receiving information [from the police] after the fact is a concern to me."

That may be. Or perhaps he was feeling the heat for his original decision not to prosecute Misch and is using the weapons charge as a way to reinsert himself into the case.

One week after Misch's arrest, Donovan took another step that some have seen as political. He called on Bennington authorities to undertake an independent review of the police department's practices, policies and procedures. Town Manager Stuart Hurd agreed to follow orders but told VTDigger.org that "We haven't done anything wrong."

Christie, the Hartford legislator, disagrees with leaving the review to the locals. "That would be the role of the Attorney General's Office," he said of the Bennington investigation. "They do have the authority to investigate an officer or a whole department."

Donovan defends his decision. He said there's a need for "ownership and responsibility" by Bennington officials. "That's not me walking away," he said. "That's me saying to them that they have to do this."

The problem for Donovan: Since he's widely seen as a strong politician with a lot of upside, his actions are viewed through a political lens. His Bennington maneuverings convey the sense of a person trying to be a leader without making tough choices that might alienate his allies in the legal and law enforcement communities.

Lt. Gov. David Zuckerman, who also has a reputation as a strong politician with a lot of upside and — wild speculation alert — a potential Donovan opponent in a future primary for higher office, refused to directly criticize Donovan. Not by name, anyway.

"We have a good attorney general. I like him," said Zuckerman. "But it's also important that the public hold all of us as statewide officials accountable ... I don't think this has been a catastrophic error by the attorney general, but it is the attorney general's job to oversee the state's attorneys and the application of our laws."

Donovan isn't rising to the bait.

"I'm sure I will continue to make decisions people disagree with," he said. "What I've found is this: If you can talk to folks, if you can explain the reason, indicate your willingness to work on the issue, stay at the table, people are going to respond to that."

Donovan says all the right things in the right way. But when it comes to action, there are times when he seems to be catching up rather than leading. In Bennington, he has promised to follow through and remain engaged. He will have to if he hopes to convince Vermonters that he acts on principle, not expediency.

Media Notes

Bad news for the Burlington Free Press. The Alliance for Audited Media has compiled its circulation numbers for the fourth quarter of last year, and they reveal a continuing plunge.

The Free Press was distributing just 15,040 copies of the print edition on Sundays and 11,765 daily. That's a 16 percent drop in Sunday circ and 18 percent decrease in daily circ from the same period in 2017.

Not good. But it's even worse when you look back to the good ol' days of 2008, when the numbers were 46,738 Sunday and 39,109 daily. That's a 68 percent drop for Sundays and a 70 percent drop in dailies.

Yikes.

Now, the Freepsters would say they're pivoting to digital, and we should include those numbers, as well. Sure, fine. The Free Press' website racked up 2,248,481 clicks in December alone. But that and a buck-fifty, as they say, will buy you a cup of coffee. Digital advertising revenue lags far behind print, and paid digital subscriptions increased only slightly in the past year.

That's despite vigorous promotion of the digital option and dirt-cheap prices for new subscribers. They can get three months of digital access for $1. That's 97 percent off the regular price of about 11 bucks a month.

Clever way to get people in the door, right? Well, it would be if the product were compelling enough to keep 'em inside. On February 13, the Free Press' cover story was about Sen. Patrick Leahy's (D-Vt.) marriage with wife Marcelle — a reprint of a story first published in the paper three years earlier.

Every time we write about the Free Press, we hear from its dissatisfied readers. Some have read the paper for decades; some are trying it for the first time. All are underwhelmed by the product — and frustrated by the "customer service" operation at corporate parent Gannett.

Lincoln resident Jeff Meller recently returned to Vermont after 20 years living elsewhere. He took advantage of a 99 cents-per-month trial subscription, but "I decided it wasn't worth reading," he said. He called Gannett's toll-free number and, after a 29-minute wait, reached an operator who claimed that she couldn't cancel his subscription. She said she would pass on his request to "a dedicated team." Meller is still awaiting a callback.

Eric Johnson of Burlington responded to an offer of one-year online access for $1. "But it's not worth a dollar," he said. "It's terrible." He had a similar experience with Gannett's toll-free service: long wait times, frustrating non-resolution.

Steve Ciardelli of Burlington had been a reader for 65 years. He and his son both delivered the paper. He shared a letter he wrote to Free Press president Jim Fogler, in which he bemoaned "a steady decline in relevant content and timely stories" that led him to cancel. Which took more than a half hour in corporate voice mail hell. At least he got through.

The Free Press' website offers plenty of opportunities to start a new subscription — but no option to cancel. "We don't offer an online option to stop a subscription," said Jay Guthrie, director of customer care for Gannett. "We want to talk to them and understand why they want to cancel and try to make it right."

Or make them jump through as many hoops as possible.

What about the endless hold times? "We've had a lot of weather challenges in the area," Guthrie explained. "We expect that to subside, and callers should have an easier time getting through."

Not sure what he means by "weather challenges in the area." Gannett's call centers are located in Louisville, Ky.; Phoenix, Ariz.; and the Philippines, according to Guthrie. It's hard to imagine that Burlington's winter has been bad enough to throw the entire system off-kilter.

It's sad, really. The staff of the Free Press are good people, doing the best they can with ever-diminishing resources. They're further hamstrung by a customer-service process that seems designed to keep subscribers from canceling — even if it means permanently alienating them from their hometown newspaper.