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

A judicial breach of privacy

Superior Court Judge Allan van Gestel‘s contempt for privacy ought to concern all of us. And his latest is hardly the first time he’s made a dubious decision involving the rights of individuals.

Van Gestel recently ordered the ticket service StubHub to turn over the names of about 13,000 customers to the New England Patriots as part of the team’s crackdown on ticket scalping (Globe story here; Herald story here). In a particularly ridiculous gesture, van Gestel ordered the Patriots not to reveal the names to anyone else. But isn’t it the Patriots from whom those customers were most trying to conceal their identities?

Van Gestel is also the judge who’s blocked Herald columnist Howie Carr from taking his talk show from WRKO (AM 680) to WTKK (96.9 FM). I’m not going to argue the legalities of noncompete clauses, right-to-match provisions and the like. Morally, though, there’s something reprehensible about telling Carr he can’t work for any radio station but WRKO until 2012, even though Carr’s contract expired last month.

And say, your honor, does Carr have any recourse regarding the “Virtual Howie” that’s now online at the WRKO Web site?

Finally, in 2000 I bestowed upon Judge van Gestel a Phoenix Muzzle Award for his mind-boggling decision to impose prior restraint on a group of anti-gay activists who had recorded a sex-education session for teenagers and were playing it for anyone who cared to listen.

What the anti-gay hatemongers did was contemptible. It also happened to be protected by the First Amendment, which van Gestel later acknowledged by removing the media from his order.

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  1. Anonymous

    EB3 Here,Dan, I have to disagree.1. The season ticket holders have a valid contract with the Patriots that in return for the tickets they are not allowed to resell them at profit or make them available to someone who will sell them for a profit.A contract is a contract.2. Howie Carr signed a contract for considerable amount of money in which he agreed to a provision allowing WRKO to match other offers when the contract ran out. And they did. And because of that original contract which Howie agreed to for a considerable amount of money, WRKO still has the rights to promotwe him. Because they rightfully used the original contract to sign Howie to a new one. Another proper judicial decision.Dan the opinions are short and to the point. They are probably shorter than most articles you read each day. These decisions are the only public records containing the facts of which you base your opinion. Yet admittedly, you have not read them.This is why I give the press, even the best of journalists, little credibility. Your interpretations of the cases above are based on gut feelings without proper context or a foundation to build on your opinion.Remember Dan. This is a nation of laws not men.

  2. Dan Kennedy

    EB3: I quite agree with you on the Patriots’ right to enforce their contract with their fans. That’s not the issue. The issue is forcing a third party, HubStub, to violate the privacy of thousands of fans so that the Patriots can pursue their private business interests. Contemptible.

  3. man who's a patriots fan

    Dan, IIRC Major League Baseball has a (equally comtemptible) exemption from anti-trust law. Does the NFL enjoy that same exemption as well?Of course, if everyone in New England weren’t total sheeples and kept buying the tickets and the merch, then these greedy bastards couldn’t get away with everything they do. We can bitch and moan all we like, but the sports owners will keep fleecing us as long as we keep going to games.

  4. Anonymous

    EB3 hereDan, subpeonas are issued all the time for records like this. Third parties are constantly required to turn over info to other parties.No rights violations here.IMO

  5. Anonymous

    Actually, DanMorally, though, there’s something reprehensible about telling Carr he can’t work for any radio station but WRKO until 2012, no there isn’t. Aside from the fact that Howie signed the contract, that particular provision of the injunction is standard language in view of the 13th amendment to the US Constitution. WRKO cannot force Carr to work for them–that would be tantamount to involuntary servitude. But WRKO can prevent Carr from working for anybody else in radio in the Boston area. I learned that back in 1971 in my Constitutional Law course in law school.–raj

  6. Peter Porcupine

    Dan – while it’s nice to know our Justices put on their pants one leg at a time, I still think it’s a judicial BREACH….And I’ve been having a GREAT time creating shows with the Howie Virtual Sock Puppet! Thank Woo!

  7. Mr Lynne

    Is it the case then that HubStub entered into a privacy contract where they couldn’t reasonably assume that they could uphold their end given the Patriots contracts with their fans? Is that the Patriots fault?

  8. Anonymous

    i agree with eb3’s first post on both howie and season ticketholders. they both signed contracts. that makes you bound by your promise. if you had no intention of abiding by your agreement, you should not put your name to anything or, in howie’s case, wait for it to expire.the only thing i disagree with is the judge’s decision to hand over names of buyers. they signed nothing and there is no criminal statute against buying inflated tickets, just selling. so their privacy has been violated.

  9. Mr Lynne

    Annon 12:06PM:Can the court reasonably rule that the Patriots have a right to enforce contracts with a fan but it has no right to know who exactly they have this contract with?

  10. Dan Kennedy

    With all due respect to the esteemed Mr. Boch and his fine automobiles, I’m really not commenting on the law here (except in the prior-restraint case), unless you consider “the law is a ass” to be commentary.My rather clumsy commentary is simply on the fact that van Gestel keeps finding himself in the middle of cases that we ought to worry about as citizens.And, again, without being an expert on the law, I nevertheless have to assume that since he had these cases before him, he could haved ruled the other way and offered solid legal arguments if he were so inclined.As for Peter Porcupine’s observation, yikes. I’m doing way too much multitasking today.

  11. Brian F.

    Do we know which governor appointed Van Gestel to the bench?

  12. Anonymous

    Actually, Dan, thisFinally, in 2000 I bestowed upon Judge van Gestel a Phoenix Muzzle Award for his mind-boggling decision to impose prior restraint on a group of anti-gay activists who had recorded a sex-education session for teenagers and were playing it for anyone who cared to listenis terribly erroneous. The background of the judge’s decision is succinctly stated here. Relevant quotation:A brief comment on how the workshop was “infiltrated.”The authors of the article state in the unedited email version of this article that they “infiltrated” the workshop. That’s not technically correct. The workshop had been listed as a closed workshop for youth only, but the youth present agreed to let the adults present remain. The adults who were present were present with permission, but the workshop was explicitly stated to be confidential, and the taping of it was neither requested nor permitted. GLSEN has subsequently sent Whiteman a letter demanding he “desist from any further distribution of the unlawfully obtained audio tape.” In other words, the surrepticious taping was another example of breach of contract–that time by the anti-gay activists.–raj

  13. Anonymous

    EB#3,Dan, you can at least read the decision before/after/during forming your opinion

  14. Peter Porcupine

    Brian F. – I THINK he was appointed by Weld…or recommended by Weld and confirmed when Cellucci was governor.

  15. Dan Kennedy

    Raj: The main problem with van Gestel’s prior-restraint order was not that he imposed it on the anti-gay activists, but that he also prohibited the media from doing anything with those recordings. As Judge Grainger recently instructed Judge Hopkins, you can’t do that. If the media are doing anything wrong by broadcasting those tapes, you go after them after the fact — not beforehand.EB3: I don’t believe the decisions you’re referring to are online anywhere. Am I correct? I went to some trouble to get copies of the Grainger and Hopkins decisions recently because I was writing about them for publication (i.e., money). I know the courts are operating under financial constraints. But failure to post decisions on the Web in a prompt manner is one of the ways that the courts avoid scrutiny.

  16. Anonymous

    No, DanThe main problem with van Gestel’s prior-restraint order was not that he imposed it on the anti-gay activists, but that he also prohibited the media from doing anything with those recordings.…the media was complicit in the breach of contract.–raj

  17. Anonymous

    All this rhetorical garbage about the sanctity of contracts is a bit much. Please. Insurance companies screw people all the time with this cudgel. (In the same way that post-Katrina loss adjusters were MUCH more precise than the agents for the same insurers were at the time that said policies were sold).It’s about the public interest. When we start using the law as a sword instead of a shield, yeah, the law IS an ass.

  18. Dan Kennedy

    Raj: So you go after the media after the fact. Prior restraint is unconstitutional unless it involves a serious breach of national security, obscenity or an incitement to violence. Period. As van Gestel implicitly acknowledged by backing down.

  19. Rick

    “What the anti-gay hatemongers did was contemptible”I’m losing respect for you Dan after reading that line. If I recall that was some pretty graphic stuff being discussed with CHILDREN. No outrage at what was being discussed with the kids?It looks like you just dismiss and name call people who don’t hold your world view.I’d expect more from someone in your position.

  20. Anonymous

    No, DanSo you go after the media after the fact. …if a company has a non-disclosure agreement (a contract) with one of its former employees, it can get a “prior restraint” injunction against the former employee that forbids him or her from releasing its confidential information.That is an example of the 1st amendment’s “shall make no law infringing freedom of speech” provision, but I see no reason why there should be any difference with the “freedom of the press” provision.The press is not entitled to special consideration because it calls itself “the press.”–raj

  21. Dan Kennedy

    Raj: If those former employees turn around and give those documents to the Boston Globe, the Globe is not bound by that non-disclosure agreement in any way. After all, the New York Times and the Washington Post received stolen goods in the Pentagon Papers case. And a majority of the Supreme Court justices wrote that the government could try prosecuting the papers after publication. But the Court refused to grant prior restraint.You’re right about one thing — the First Amendment is for everyone, and provides the press with no special protections for anyone. So if you want to leak those documents to a blogger …

  22. Anonymous

    EB3 here,I do not if the decisions are on line, but they are readily and easily available to journalists and lawyers and academic institutions on line at the many subscription services the Boston Globe and Northeastern U. subscribe to.You should also read the Judge Hopkins decision and the appeals court on the same matter. The appeals court did not chastise Judge Hopkins as you assert. Rather the issue was moot when it got to the appeals court. And believe it or not Dan,. Judge Hopkins decision wass not off base at the time she made it.There is small but very important distinctions that can only be understood by reading the decisions. You do not have to be a lawyer to understand them. And then you can have a basis to make claims and form opinions on the decisions. Not this jump ball in interpretations that the press routinely makes. How can an editor allow a reporter to write about a court decision without having read the decision? This seems to be routine in the media.

  23. Anonymous

    EB3 hereDan, make a friend at NE Law School. You can get opinions easily and free. As I keep saying, there should be basic law courses given to journalism students.

  24. Dan Kennedy

    EB3: I not only have read Hopkins’ and Grainger’s opinions, I have them parked on my hard drive for posterity’s sake. And I think you’re absolutely wrong. It doesn’t take much reading between the lines to detect that Grainger is giving Hopkins a polite but firm tongue-lashing.

  25. Anonymous

    Yet again, no, Dan If those former employees turn around and give those documents to the Boston Globe, the Globe is not bound by that non-disclosure agreement in any wayUnless the Globe had checked to determine whether or not they were aiding and abetting a breach of contract, they may very well have been complicit in, and a co-conspirator in, and an accomplist after the fact in, the breach of contract.Regarding your obvious Pentagon Papers reference, there was no evidence that there was a contract to be breached. Moreover, maybe you forget, but the fact is that the publication of the PPs was sanitized by AK Sen. Mike Gravel (yes, that Mike Gravel) when he read well over half of the PPs into the Congressional Record. Since he did it in the well of the Senate (actually, in committee, which is the same), he was immune from prosecution. And since he read it into the public record, the NYTimes could publish whatever it wanted from that public record, and that was his intent.–raj

  26. alkali

    Just to provide a little background:The reason why Judge Van Gestel is at the center of so many cases that are highlighted in the media is that he is one of two judges who sit in what is called the “Business Litigation Session” of the Superior Court for Suffolk County. The “BLS” is a special session of the Superior Court that only takes complex commercial cases.Notwithstanding the significance of the BLS, Judge Van Gestel has no permanent law clerks and no secretary. It is my understanding that he types his own opinions, and puts copies of any substantive ones in a folder. The Social Law Library — the lawyers’ membership library — comes by his chambers every week or so to pick up the opinions, at which point it scans them and puts them in its database. I doubt the judge would object to having them go up in real time on the web, but the trial courts don’t have any system for doing that yet. I suppose you could get the opinions from the Suffolk clerk’s office, if they could find the file (which is no slam on the Suffolk clerks; they work hard in Suffolk and are massively overburdened).[To be clear, I don’t know Judge Van Gestel personally — most of this comes from Mass. Lawyer’s Weekly or explanations people at Social Law have given me from time to time.]Judge Van Gestel’s discovery order in the Patriots/Stub Hub case was appealed — there is a special procedure for emergency appeals prior to conclusion of a case, which go before a single justice of the Appeals Court (I believe it is currently Justice Grainger). That appeal was denied, for what it’s worth. (The link takes you to the appeals court docket, which is available online.)

  27. Lucky

    I don’t understand the particulars of these cases to get into them, but I think Van Gestel has actually shown quite a high regard for personal privacy because of two cases of his that I am aware of.In one he struck down the anti-tatoo laws of Massachusetts as the laws were a violation of free expression.In another case, in 1999, Van Gestel imposed an injunction on City Hall and the Police department after the police tried to shut down a private club in Boston that played music after 2am. The club (which still operates – called Rise) sued the City for violations of freedom of assembly and speech. Van Gestel slapped the City and showed a high regard for the rights of individual privacy in this case.So some of his cases may bother you, but unless you look at the entire record of the man, I think you are drawing conclusions about him which are not accurate.

  28. Anonymous

    I’m no big fan of Carr’s but today’s piece in the Globe struck me, vis a vis public policy:1. The judge encourages an employee furtively negotiating with another employer WHILE employed?2. Unless Carr disclosed he was talking to someone else, the right to match would have been moot, no? Whom would they be matching?3. Van Gestel’s ad hominem comments about Carr call into question his judicial temperment,”Carr touts himself as ‘a fixture on local television and radio broadcasts for over 20 years.’ ” The judge added: “The Court judicially notices that Carr also is a frequent author of hypercritical screeds in the Boston Herald, attacking essentially any public figure of his choice.” Shades of Ernie Murphy, (or payback for same).

  29. Anonymous

    The judge doesn’t care how he rules. He’s just upset because he’s being forced to retire this yearHe probbaly hates Hoie Carr so is ruling against him no matter what. He probably wants those season tickets so he’s doing the Krafts a favor

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