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

Intimidation, free speech and Barstool Sports

Martha Coakley

(Note: This item has been corrected. See below.) If Attorney General Martha Coakley thinks David Portnoy broke the law, then she should charge him. If not, then she should leave him alone. What she shouldn’t do is send state troopers to his house to intimidate him into removing nude photos of Tom Brady’s 2-year-old son from his sleazy website, Barstool Sports.

A number of legal experts, including Coakley herself, have concluded that Portnoy did not violate child-pornography laws because there was no “lascivious intent,” according to the Boston Globe. Indeed, Portnoy’s crude commentary about the size of the boy’s genitals may actually have helped him, since he demonstrated that he is a moron rather than a pervert.

But Coakley, having come to the conclusion that Portnoy broke no law, had no business dispatching police officers to his home to tell him what content was appropriate and inappropriate for his website. Portnoy said the officers were polite, but as First Amendment lawyer Jonathan Albano tells the Globe, “There’s an inherent element of coercion when civilians are faced with police in uniforms.” I’m glad Portnoy finally removed the photos, but the principle is that law-enforcement officials shouldn’t tell people that it would be a good idea if they stopped engaging in legally permissible conduct.

That’s not to say Portnoy didn’t show incredibly poor judgment. The Boston Herald reports that — yes — Howard Stern is among those taking Portnoy to task, telling him during an appearance on his radio show, “I have three daughters and I gotta tell you, Dave, I would never post a picture of a child and comment on their genitals, and I’m known for outrageous commentary.”

There would have been no free-speech issue if, instead of state troopers, Portnoy had opened his door and found Tom Brady and a couple of Patriots linemen standing on his front porch. It would have been a lot more satisfying, too.

Correction: It has come to my attention that I misunderstood the timeline. At the time that state troopers visited Portnoy’s house, Coakley’s office was still investigating, and had not yet decided whether to bring criminal charges against him. The troopers did ask that Portnoy remove the photos, and he voluntarily did so. It was only after that that Coakley decided no crime had been committed.

Photo (cc) 2009 by Dan Kennedy. Some rights reserved.

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  1. Bob Brosseau

    Mr. Portnoy has been featured lately as a guest on WEEI’s Dennis and Callahan. They also have a weekly feature with Brady which I would assume makes the station a great deal of money. I suspect that Mr. Portnoy will not be making any appearances on that program from this point on. And you are correct, a couple of Brady’s protectors would have been far more satisfying, and I suspect even more intimidating.

  2. What keeps getting glossed over in this rumpus is the incredibly poor judgment of the kid’s mother allowing him to run around in the altogether. She knows the paparazzi are always stalking her; why’d she give them this opportunity to do their worst?

  3. BP Myers

    I think one answer to John’s question above is that she doesn’t care. She certainly seems far more cosmopolitan than any of the talking heads going apoplectic about it.

    It wouldn’t surprise me at all if Tom and Giselle were offended that a private moment between mother and son became fodder for the tabloids, but that his being naked had little or nothing to do with it.

  4. B.A. DuBois

    “…a moron, rather than a pervert.”

    Now *that’s* the kind of defense I’d love to hear in a courtroom…. heh.

  5. C.E. Stead

    This is like the beer thing – we are hearing about it because it involves a famous person. Is this something Coakley thinks is OK? Does she OFTEN send state police officers to the homes of citizens to have a little ‘chat’?

  6. Mike Benedict

    @John Carroll: Great point.

    Meanwhile, not sure I see the line between criticizing police “coercion” and approving mob brutality.

    • Dan Kennedy

      @Mike: I would not endorse actual physical violence against Portnoy. That said, my main concern is that the government not engage in anti-First Amendment behavior. What Brady and his teammates might do to Portnoy doesn’t fall into that category. My guess is that if he merely saw them on his front porch he’d wet himself and faint, and that would be the end of it.

  7. Mike Rice

    Thank you Howard Stern for your subliminal definition of a pathetic loser.

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