As I had hoped, Massachusetts Appeals Court Judge Andrew Grainger used some pretty strong language in explaining why he overturned Superior Court Judge Merita Hopkins’ prior-restraint order against WHDH-TV (Channel 7). The Boston Herald’s Jessica Heslam quotes from Grainger’s opinion:
As the judge noted in her order, the injunction is without doubt a prior restraint on speech.
[Channel 7] does not argue that it should be granted official access to the autopsy records; rather, it seeks to broadcast information already in its possession.
Simply put, the inability of the press to require the government to disclose information that is not part of the public record does not support a restraint on speech with respect to information already known to the press.
Indeed and famously, the presumption against prior restraints on free speech has prevailed even when the materials at issue are stolen and deal with issues of national security.
Grainger goes on to observe that, in this particular case, Hopkins’ error was compounded by the fact that her order didn’t even accomplish its objective — as it turned out, Channel 7, which had an exclusive, wound up being the only news organization not to report on the autopsy results.
Grainger’s tough words should stand as a warning to any judge who’s thinking of emulating Hopkins. It’s not enough that she has been overturned. It’s crucial that judges not abuse their power to hold up a story for a day or so and then punt to a higher court. If Hopkins isn’t embarrassed, she ought to be.
In the Boston Globe, columnists Joan Vennochi and Kevin Cullen weigh in. Cullen, joining those of us who believe Hopkins should have recused herself, observes that Hopkins hasn’t always been as solicitous of privacy rights as she was with respect to the fallen firefighters.
And, believe it or not, he brings it all back to Whitey Bulger. Boston is indeed a small town.