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

Did David Portnoy commit a crime?

Jonathan Albano (right) at a forum at Boston University last year on "Legal Liability in the Age of WikiLeaks." At left is First Amendment lawyer Robert Bertsche. I was the moderator, and I'm sitting in the middle.

Could David Portnoy face criminal prosecution for posting nude photos of Tom Brady’s 2-year-old son? I’m guessing no. But he’s taking a huge risk that some ambitious prosecutor might at least want to make a name for him- or herself by going after Portnoy and his sleazy website, Bar Stool Sports.

We begin with lawyer and former prosecutor Wendy Murphy, who is quoted as telling WCVB-TV (Channel 5): “The whole purpose was to get people to look at [the child’s] genitalia, so absolutely — 20 years maximum and a $50,000 fine on top of that.” That’s certainly an opinion that should make Portnoy sit up and take notice. But it also seems to be a distinctly minority view.

The Boston Herald’s Dave Wedge reports today that neither the FBI nor Norfolk County District Attorney Michael Morrissey’s office would confirm or deny whether there’s an investigation under way. That’s standard procedure for the FBI. But it may be significant that the DA’s office said nothing. Unless everyone was just heading down to the Cape on a Friday afternoon.

David Frank of Massachusetts Lawyers Weekly adds Attorney General Martha Coakley to the list of officials who would neither confirm nor deny an investigation. But though Frank calls the pictures and Portnoy’s description of the young boy’s genitals “creepy” and “tasteless,” he casts serious doubt on whether a crime was committed:

I’ve talked to several lawyers today, from both the prosecution and defense side, who say there’s no chance Portnoy will ever be hit with a possession of child pornography charge. Portnoy’s post, as out of bounds as it is, simply doesn’t support the elements of the crime.

On the other hand, Frank quotes noted First Amendment lawyer Jonathan Albano as saying Brady and his wife, Gisele Bündchen, might be able to file an invasion-of-privacy suit on their son’s behalf and have some hope of succeeding.

“You’re talking about the publication of a 2-year-old’s private body,” Albano tells Frank. “Unlike Gisele, you can’t say that the child is a public figure, and why should he have less privacy rights than anyone else?”

I hope Brady and Bündchen go for it.

We talked about this on “Beat the Press” on Friday. Please have a look.

Photo by Emily Sweeney.



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  1. Michael Pahre

    Portnoy’s general lack of taste is magnified by this posting. It’s bloggers like him that give all the rest of the world’s bloggers a bad name.

    I’m not sure to what extent Portnoy studied legal aspects of First Amendment and the right to privacy prior to beginning blogging, but, based on this post, I suspect he hasn’t.

    This case is a good example for why bloggers should seek to join an organization such as the Media Bloggers Association that requires you to take an online course covering First Amendment and privacy issues. If Portnoy had done so, he would likely realize that: (a) the kid is not a public figure, even though his parents are; and (b) the relevance of the location of the picture, i.e., a private beach. Understanding those two points would lead any thinking blogger to realize that publishing the image potentially opens you up to legal liability.

    I hope he gets sued, because his high visibility would probably serve to educate a lot of other, sloppy bloggers.

    • Dan Kennedy

      I’m trying to think through the grounds for an invasion-of-privacy suit, which would probably have to be filed against the photographer as well as Portnoy. It doesn’t neatly fit in with any of the four principal privacy torts, though intrusion is a possibility, depending on the circumstances of how the pictures were taken. There’s a lesser privacy tort known as outrage, but I don’t know whether it’s recognized in Massachusetts.

  2. Dan Farnkoff

    For those who defend Portnoy and/or the photographer and who are also parents, how would you feel if a neighbor with a telephoto lens took some pictures of your kid with no clothes on then posted them on the internet with a lewd caption? Say you had forgotten to close the blinds in the bathroom or something. If you called the cops to report your neighbor can you picture Coakley and Conley saying “Sorry, there’s nothing we can do.” Maybe one of local legal experts will chime in to explain how this theoretical scenario is so very different from what happened here.

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