Following is an open letter to VTDigger Co-Publisher, Anne Galloway. The Air Force provided the email correspondence between VTDigger and Air Force spokeswoman Ann Stefanek in response to a Freedom of Information Act request. The full email correspondence, as provided by the Air Force (and annotated by me), can be downloaded by clicking here or on the link below.  

                                                                               September 16, 2014

RE: Banned by VTDigger

Dear Anne,                                            

On this, VTDigger’s fifth birthday, I would like to point out an important issue that hangs like a dark shadow over VTDigger’s credibility.

As you know VTDigger published 39 op-ed pieces that I authored or coauthored during the first four years of its existence. But on October 28, 2013 VTDigger published an article by Tom Brown announcing that it would no longer accept op-ed pieces from me based on an email communication from Air Force spokeswoman Ann Stefanek. Although no confidential source and no confidential information were involved, VTDigger refused to release the email communication from Stefanek that was the basis for its attack on me.

Air Force released email exchange under the FOIA

However, in response to my federal Freedom of Information Act (FOIA) request, the Air Force sent me all the emails VTDigger exchanged with Air Force spokeswoman Ann Stefanek.

Hurtful as it was to me, the reputation damage was not the most important failing. I write to you because the damage from your article and your banning effect thousands of innocent Vermont families who are in the flight path of F-35 basing and who need all voices speaking up.

Air Force spokeswoman never charged misrepresentation

The emails between VTDigger and Stefanek show that VTDigger made serious mistakes in its October 28, 2013 article, “F-35 opponent told Pentagon official he was a VTDigger freelancer.” The emails show that Stefanek said nothing disparaging about me and never charged me with, suggested, or hinted at any wrongdoing.

Federal law defines “freelancer” and provides for equal access to government information

As we shall see in this letter, federal law, the “Freedom of Information Act”  (FOIA), and an Order from the Secretary of the Air Force called “Freedom of Information Act Program,” which implements the federal law, define who is a “freelancer.” I fit perfectly under the federal and Air Force definition, and VTDigger was wrong in claiming that I had “misrepresented” myself in my communication with the Air Force. In addition, federal law provides equal access to information, and VTDigger was wrong that my motive was “to gain information [about projected F-35 fleet flight hours before basing in Vermont] that might not be available to a member of the general public.”

The Order and the law have identical wording defining “a freelancer.” Under the law, among the ways the Air Force may regard an information requester as a freelancer for a news-media entity is whether the requester can demonstrate a solid basis for expecting publication through that entity. The government can make that determination based on the requester’s “past publication record for that news-media entity.” Other ways, of course, include being on staff, being on assignment, and being paid by the news-media entity for articles.

Here is what the federal law and the Air Force Order both say:

A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.

The intent of Congress in passing this law with its broad definition of “freelancer for a news media entity” is clear: Congress passed the Freedom of Information Act to make government information widely available to the public. Thus, the sole government interest (in granting a fee waiver for searching for the requested documents) is whether the requester can demonstrate a solid basis for publication through a news-media entity. As expressly provided in the law, past publication record works for that demonstration. What VTDigger may view as of primary importance, being on staff or being on assignment and being paid, are merely other good ways of demonstrating satisfaction of the government interest in wide dispersal of the information sought. Nor does the law distinguish on the basis of the label given to the past publications by the freelancer, so long as they show publication of information. The law includes no restriction as to whether the publications are called news, feature, or opinion.

The 39 op-ed pieces that I authored or coauthored on various subjects that VTDigger published during its first 4 years of existence–and I thank you for publishing them and for keeping them posted on the VTDigger web site–provided a “past publication record” that provided a “solid basis for expecting publication through VTDigger.” Until I was banned.

Based on this past publication record on VTDigger–and many more published during the past few years on Truthout, Counterpunch, Mondoweiss, and Oped News, as well as oped pieces published years ago in the New York Times, Los Angeles Times, and Burlington Free Press, among others, a good case could be made that I fit the federal law definition of freelance journalist. (Of course, I also fit the ordinary Merriam-Webster dictionary definition, “a person who acts independently without being affiliated with or authorized by an organization.”)

It was not just the large number of fact-filled op-ed pieces of mine that would have qualified me as a “freelancer for VTDigger” under the Air Force and federal government standard. Also a large readership: A VTDigger article, “Recap 2012: Readers’ top stories”  notes that one of my oped pieces, about “smart meters,” was among the five most read VTDigger op-eds in 2012.

Let’s assume for the moment that Stefanek’s 5-word summary of what I said was perfectly accurate. Let’s assume that Stefanek had precisely quoted me representing myself as “a freelancer for your publication.” Had I actually said precisely that, I would still have been 100% accurate under the operative definition when speaking with the Air Force (or any other federal agency). This because of my past publication record for VTDigger (39 op-ed pieces). Thus, even if Stefanek had quoted me precisely, which she did not (and VTDigger’s second email to Stefanek shows that even VTDigger felt she had not quoted me precisely), and even if she otherwise also knew that I was not “on assignment” from VTDigger, and even if she also knew I was not paid for my articles, she would not have regarded me as “misrepresenting myself.” This is because under the above quoted federal law and the Order to Air Force personnel issued by the Secretary of the Air Force my past publication record on VTDigger would qualify me as a freelancer for VTDigger.

However, what I actually told Ann Stefanek during our phone call was a little different than what Stefanek said in her email to VTDigger: As I wrote in an email to VTDigger the day before VTDigger published its October 28, 2013 article, “I told Ann Stefanik that I write articles for VTDigger. She asked if I was on staff. I said no, I write articles for VTDigger freelance or that I was a freelancer.” VTDigger’s article failed to include any quote from me at all.

So why did VTDigger launch its wrongful attack?

21 of the 39 op-ed pieces of mine that VTDigger published exposed defects in the plan to base F-35 fighter/bombers in Burlington. The articles provided the public with information not provided in other media outlets:

o Corruption in the F-35 basing decision making process under pressure from Senator Patrick Leahy.

o Air Force acknowledgment of serious degradation of the health and safety of thousands of Vermont families from noise and crash risk if the F-35 was based in Burlington.

o How Vermont commercial real estate developers had already used the intense noise of the F-16 to get the federal government to pay for the removal of hundreds of families and demolish more than 100 affordable homes near the airport entrance so they could acquire that valuable land for commercial development and how the louder F-35 would facilitate that plan.

The October 28, 2013 VTDigger article misled readers into thinking that it was Stefanek who contacted VTDigger to level the charge that I had misrepresented myself. The emails show that Stefanek never leveled any charge against me. The charge of misrepresentation was authored solely by VTDigger. Not only that. The emails actually show that it was VTDigger trying to persuade Stefanek to agree with the charge of misrepresentation. But she never did.

VTDigger asked for and failed to get more precision

After failing to get Stefanek to agree with the charge, in the next email from VTDigger to Stefanek VTDigger asked her for more precision about what I had said to her:

as precisely as possible recall what James Leas said to you when he represented himself as a freelance writer for VTDigger.org. Did he use the word freelance writer? And anything else you might remember. I need to confront him on this and want to make sure I know as precisely as possible what words he used.

In asking for more precision about what I had said, VTDigger admitted that it did not think what it already had from Stefanek was sufficiently precise.

But Stefanek gave nothing more precise. Yet the article omits mention of VTDiggers own dissatisfaction with her precision. On what basis did VTDigger level its charge of “misrepresentation” if even VTDigger did not feel that Stefanek could provide what I had said precisely enough?

A comparison of the emails with the article also shows that VTDigger also threw several additional negative points into the article that Stefanek never said in any of her emails and that had no basis in fact.

VTDigger misled readers about its sole source

The emails also show that VTDigger misled its readers not just about what Stefanek said but also about who Stefanek is. In the article, VTDigger identified Stefanek as an authoritative figure, a spokeswoman for the Air Force, which is true. But VTDigger omitted mention that Stefanek self-identifies on her Facebook page as a supporter of Green Ribbons for the F-35-the local Vermont organization that was leading the campaign in support of F-35 basing in Burlington. Thus, VTDigger relied exclusively on the word of an avowed partisan for banning someone on the other side, and never let its readers know of her affiliation.

This was not only a matter of improper reporting. And misleading readers. In addition, because what VTDigger published was false and reputation damaging, its article put VTDigger on the wrong side of Vermont law regarding defamation.

Banned five weeks before the Air Force F-35 basing announcement

VTDigger published its personal-attack piece when the Air Force announcement selecting Burlington for F-35 basing was imminent. VTDigger announced the silencing of my voice in its statewide forum just 5 weeks before the December 3, 2013 Air Force announcement that Burlington was selected.

VTDigger effectively silenced me from VTDigger’s statewide audience at the most crucial time for the politicians and commercial real estate developers seeking to foist this immense danger onto Vermont communities–the same politicians and commercial real estate developers my articles were exposing. The silencing based on false charges facilitated the play book of those politicians and developers. The silencing allowed them to proceed without having to defend their conduct in this statewide forum.

Ann Stefanek, of course, bears some responsibility, too. She failed to correct VTDigger’s obviously wrong statements in its emails to her about who the Air Force regards as a freelancer. She failed to correct VTDigger’s wrong statements about who may receive Air Force documents. And in her emails she failed to divulge to VTDigger her Facebook association with the pro-F-35 basing organization in Vermont, “Green Ribbons for the F-35”.

If the motive don’t fit

The very release of the emails by the Air Force to me–even after VTDigger’s personal attack article–demonstrates that VTDigger was wrong about my supposed motive for “misrepresenting” myself. In the article, VTDigger explained how motive was crucial to its attack on me:

We believe he was attempting to leverage the privilege granted him by VTDigger to have his anti-F-35 opinions published on our site and that he used that connection to gain information that might not be available to a member of the general public.

VTDigger’s charge that I had “misrepresented” myself depended on its “belief” as to my motive for doing so, that the information “might not be available to a member of the general public.” However, under federal law and an Air Force Order, government information, including Air Force information, is equally available to members of the general public as it is to paid reporters.

The Order from the Secretary of the Air Force, “Public Affairs Responsibilities and Management,” 18 August 2010 provides no distinction between news media and private citizen regarding what documents will be provided. The Order also provides no distinction between news media and private citizen regarding the time for response from the Air Force. Even “expedited processing” is available to both news media and private citizens if requested and a “compelling need” is established. The Order states:

DOD makes available timely and accurate information so that the public, Congress, and the media may assess and understand the facts about national security and defense strategy. Requests for information from organizations and private citizens shall be answered in a timely manner. In responding to requests, the following guidelines apply:

1.10.1. Information will be fully and readily available, consistent with statutory and regulatory requirements and exemptions. The provisions of the Freedom of Information Act (FOIA) and the Privacy Act will be supported in both letter and spirit.

Notwithstanding the additional handicap posed by the reputation-damaging article VTDigger published, the Air Force decision to release to me the email correspondence between VTDigger and Stefanek demonstrates in action the equal access to information.

Thus, VTDigger published a motive for its charge of “misrepresentation”–a motive that was central to the case made by VTDigger against me–that was flat wrong.

The author of the October 28, 2013 VTDigger article, Tom Brown, effectively admitted that the motive presented in his article was wrong in a comment he posted to the article the morning after his article appeared. In the comment Brown said “the Pentagon PIO cannot handle inquiries from all citizens and therefore grants a higher priority to legitimate media requests, a privilege upon which Leas was trying to capitalize. Case closed.” Thus, the motive for “misrepresenting” myself, was no longer “to gain information that might not be available to a member of the general public.” Necessity to gain the information was now replaced by mere “priority.” Thus, Brown himself acknowledged that what he had published one day earlier was wrong.

Nor did Brown explain why a reader should believe that the new motive presented in his comment was any more accurate than the one he had errantly tossed into the article. Nor did he let readers know that the FOIA and the Air Force Order broadly define what he calls “legitimate media” to include as “freelancers” people like me, who write opinion pieces without employment, assignment, or deadline but who have a substantial past publication record. As to priority, nor did he let readers know that the FOIA expressly provides for “expedited processing,” and that both reporters and members of the general public are entitled to expedited processing if they can show “compelling need.” To meet that standard a reporter would have to show “urgency to inform the public concerning actual or alleged Federal Government activity.” The emails from Stefanek show no request by me for “expedited processing” or any other priority. Nor did I ask for priority in making my request.

Nor did Brown mention in his article or in his subsequent comment to the article that nothing in the emails from Stefanek or in the law supports either his original guess as to my motive, (necessity to get otherwise unavailable information), nor his replacement guess, (priority).

VTDigger attempted to lead Stefanek but failed

The emails also show that VTDigger fixed up the reputation-damaging personal attack from the start and attempted, but failed, to lead Stefanek toward VTDigger’s conclusion. And, as new information became available to the members of the commenting public that demolished one aspect of VTDigger’s story after another, VTDigger acknowledged nothing and corrected nothing. Amazingly, after some of the 123 comments posted to the article showed serious flaws in the article and its conclusion you, VTDigger’s co-publisher,  posted a comment repeating the charge of “misrepresentation.” Thus, VTDigger cannot deny that it knowingly published a defamation.

Certain supporters of F-35 basing in Vermont have extensively used personal attack in anonymous comments they have posted in response to articles on the Burlington Free Press. The VTDigger article was the first time a mainstream media organization in Vermont had effectively legitimized and put names to this personal attack mode.

Reaffirm appropriate standards

A posted correction by VTDigger is essential to unambiguously reaffirm appropriate standards for the ongoing debate on this issue and all other issues. And to assure readers that silencing opponents of powerful political and economic interests in Vermont will not be allowed unless an independent and impartial review demonstrates a solid basis for this sanction.

As every American knows, the fundamental job of our news organizations is to question authority and hold the government to account. Instead, in this case, VTDigger did the opposite.

VTDigger’s personal attack publication was made with reckless disregard for the truth, showed ill will, showed VTDigger acting with complete disregard for its duty to verify and for its duty to support the right of the one being attacked to answer the attack–as provided in ordinary journalist ethics. VTDigger’s article included statements that had no support whatsoever in the emails but just added to the insult, and VTDigger must have known they had no basis and were false at the time it first published them. Worst of all, VTDigger put itself in the position of being viewed as obsequious to politicians and real estate developers rather than in its proper role as a watch dog over government action and powerful private interests with influence over government, and unabashedly for the public interest.

VTDigger suppressed news gathering vital to public safety

Notwithstanding VTDigger’s notice, later added to the article, that it will continue to report on both sides of the F-35 issue, VTDigger failed to follow up on its own to obtain and provide the facts about the anticipated fleet flight hours for F-35 jets in 2020 (the year the so-far unqualified fighter/bombers are scheduled to arrive in Burlington under the decision announced by the Air Force on December 3, 2013). The F-16 had more than a million fleet flight hours before it was deemed to have a safety record sufficient for basing in a residential area. VTDigger has suppressed not just the speech of a single individual but also suppressed publication of vital safety information that would by now be available to the public if not for VTDigger interference.

Neither continued harsh repetition of the defamation nor denial nor silence will work to remove the deep shadow over VTDigger’s journalistic integrity that its October 28, 2013 article produced.

Readers and supporters of VTDigger have a right to request (a) prompt correction of each and every one of the statements in the article that it knows have no basis in fact, and (b) VTDigger promptly agreeing to a fully independent and impartial investigation as to how and why this bogus article was published so the public can regain confidence that this type of abuse will never happen again, particularly when public health and safety are at risk and particularly when the beneficiaries are rich and powerful commercial real estate developers, politicians at the highest level in our state and in the US Senate, and the military-industrial complex. And when the people being severely shafted are thousands of Vermont families living in modest housing in Winooski, Burlington, Williston, Colchester, and South Burlington.

A change is needed, and this fifth VTDigger birthday provides the time for VTDigger to announce the sunshine of an independent and impartial investigation and that VTDigger will make appropriate correction so the dark shadow may be lifted.

Thank you very much for considering this. I look forward to your response.

                                                                                   Sincerely,

                                                                                   James Marc Leas