By Dan Kennedy • The press, politics, technology, culture and other passions

Judge Hopkins’ shocking decision

Superior Court Judge Merita Hopkins issued a shocking decision yesterday. By stopping WHDH-TV (Channel 7) from reporting on autopsy reports that allegedly show two Boston firefighters killed in an August restaurant blaze had abused drugs and alcohol, Hopkins violated the most basic of First Amendment protections — the protection against prior restraint. (Boston Globe coverage here; Boston Herald coverage here and here.)

The courts — right up to and including the U.S. Supreme Court — have consistently ruled that when a confidential document ends up in the hands of the media, there’s nothing that can be done about it. The legal responsibility is on the keepers of those documents not to release them; the media, by contrast, have no legal obligation not to report on them.

There are many cases I could point to, but consider that of Jim Taricani, an investigative reporter for WJAR-TV (Channel 10) in Providence. A few years ago Taricani broadcast videotapes of an aide to then-mayor Buddy Cianci taking a bribe. The tapes had been sealed by a federal judge, Ernest Torres, and thus it was illegal for anyone to give those tapes to Taricani — a perfect analogy to the situation involving the autopsy reports yesterday.

Taricani was in big trouble with Torres — but not for broadcasting the material. That, the judge made clear, was absolutely protected by the First Amendment. Instead, Torres insisted that Taricani reveal his source, because it was that person, not Taricani, who had violated the law. Taricani refused, and was sentenced to home detention. (The source, later revealed to be defense lawyer Joseph Bevilacqua Jr., was punished as well.)

It could very well be that the journalists who revealed the contents of the autopsy reports in the matter of the Boston firefighters will be pressured to give up their sources as well. Those of us who champion a free press ought to be concerned about that, but at least it’s well-established legal terrain.

Judge Hopkins, on the other hand, ought to be sent to her corner and forced to repeat 50 times: “Congress shall make no law … abridging the freedom of speech, or of the press.”

More: Here’s the text of Near v. Minnesota, the 1931 decision by the U.S. Supreme Court in which prior restraint was deemed a violation of the Constitution in almost all instances. The exceptions — national security, obscenity and incitement — are narrowly drawn, and obviously do not come within a mile of the Boston case.

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Wrong about Middleborough (again)


  1. Anonymous


  2. Anonymous

    Hopkins did work for the Mayor as chief of staff for some time before being appointed. That might make her sensitive to this kind of leak or want to protect the city workers, I don’t know.

  3. O-FISH-L

    Where was former Attorney General Tom Reilly when he was needed to once again “remind” the authorities that they don’t have to release an autopsy report, ala Southborough?, the firefighters hadn’t contributed enough to the Reilly campaign to “earn” the same privelege.

  4. Anonymous

    You know it’s going to be brutal feedback, but this is a good story. Particularly in light of the unquestioning sainthood that’s always bestowed upon firefighters, police, etc. after something tragic like this happens. Particularly on the TV news. This isn’t stomping on someone’s grave–it is pointing out that there is something broken in a system that allows apparently impaired public safety employees to go out on the job.

  5. The Scoop

    I can’t believe a judge would make this ruling. It could not be any more clear-cut. I’m sure it will be reversed on appeal, but is there anything the judicial system can do to Hopkins to prevent this from happening again (training, punishment, etc.)?

  6. man who's a first amendment fan

    Well, now that we know why the autopsy report was hushed up it looks even worse. As in, it looks like Hopkins was ignoring the law to try and protect someone’s reputation. Obviously I’m making an inference and I could be way off base, but it’s a pretty logical conclusion…and a very bad one. People willing to do that have no place on the bench.

  7. Anonymous

    It’s a shame the acts of the fallen firefighters trivialized the contributions made by public safety employees. This wasn’t even a close call. As a real estate appraiser, I once (20+ years ago, bad old days),went to the Tax Assessor’s office at Boston City Hall. Asked to see the public record on a commercial property. Response I got was “why?”. (Again, PUBLIC record). Pretty obvious that the file (which they had “misplaced”), contained information which would not withstand public scrutiny. Neither journalism nor public safety is easy or simple. Both are necessary, however and need to be protected from those who would endanger their important work.

  8. Scott Allen Miller

    That’s what happens when you have a system in which judges are appointed because of WHO they know rather than WHAT they know.

  9. Evan

    I hope that this is appealed and the judge is struck down rather rudely by the appelate court.

  10. Anonymous

    Thomas Jefferson: “”… were it left to me to decide whether we should have a government without newspapers, or newspapers without government, I should not hesitate a moment to prefer the latter.”

  11. Anonymous

    It is indeed sad that the two Boston firefighters who died in the fire had abused drugs and alcohol. Did their abuse contribute to their own deaths?Did it dull or slow their awareness, judgement or reaction time? Could their abuse of drugs and alcohol have endangered the lives and property of those they were sworn to protect?These broader questions of public accountability is what the judge in this case should consider.

  12. unbemused

    rare that everyone can be wrong in one ridiculous situation. the firefighters were wrong (if the story is true); the judge was obviously wrong; but the station is to blame, too. sometimes, when a right is important enough, it’s not just a right but a duty to flip the judge off and go with it.

  13. Anonymous

    Would be nice if any media orgaization linked to the decision, rather than editorializing about how dreadful it is.Given my “right to know” that they are so valiantly protecting and all.

  14. Dan Kennedy

    Anon 1:26: It’s not online. Do you think I wouldn’t link to it? I’m trying to get a copy right now.

  15. juandos

    The courts — right up to and including the U.S. Supreme Court — have consistently ruled that when a confidential document ends up in the hands of the media, there’s nothing that can be done about it“…So since its been done WRONG all along its just good policy to continue to be wrong?Oh yeah! Now that’s some rational thought process there…

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