First Amendment – Page 28

Judge upholds fair-report privilege in Herald case

Sounds like musician Tom Scholz is really reaching as he pursues his libel suit against the Boston Herald.

Scholz, as you may know, claims that the Herald’s “Inside Track” gossip column libeled him by reporting in 2007 that Micki Delp had said Scholz bore some responsibility for the suicide of her ex-husband, Brad Delp. Scholz was the founder and leader of the band Boston, and Delp was the lead singer.

Apparently Scholz also charged that the Herald libeled him by reproducing parts of those articles in reporting on his lawsuit against the paper when he filed it in 2010. One problem: the articles were an official part of the lawsuit.

Which means that the Herald had every right to report on the contents of those 2007 articles accurately, even if they ultimately are proved to be libelous. Which means, too, that Superior Court Judge John Cratsley dismissed Scholz’s complaint about the 2010 articles yesterday. As the nationally renowned First Amendment lawyer Floyd Abrams told the Herald:

It’s a complete victory based on deeply rooted principles of English and American law. It’s a privilege of the press to publish a fair account of just about anything that happens in court. Without that right, the public would never know what goes on in court.

The fair-report privilege is a vital protection for the press. Because of the privilege, for instance, a reporter may write about what takes place at a city council meeting without having to worry whether someone might have said something libelous.

As Abrams (and Cratsley) notes, court proceedings are covered by the privilege as well. I still recall reporting on a rather outrageous allegation someone had told me he’d included in a lawsuit he’d filed. The Boston Phoenix’s lawyer flagged it before publication. I double-checked, showed my editor the language in the lawsuit and the lawyer told us to go ahead and publish.

The Herald is still at risk over its 2007 reports. Cratsley recently dismissed Scholz’s suit against Micki Delp, ruling that the statements at issue were solely the Herald’s responsibility. Yesterday’s ruling, though, was a victory not just for the Herald, but for the First Amendment — and all of us.

The Boston Globe covers yesterday’s ruling here. Earlier coverage of the Scholz lawsuit here.

How will ruling in Scholz lawsuit affect the Herald?

A Superior Court judge’s ruling in the messy legal aftermath of Boston singer Brad Delp’s suicide represents a setback for Boston founder Tom Scholz, the Boston Herald reports. But what effect it will have on Scholz’ libel suit against the Herald itself is unclear.

Judge John Cratsley dismissed Scholz’s suit against Delp’s ex-wife, Micki Delp, ruling that Scholz failed to prove she had defamed him. Relying in part on quotes from Micki Delp, the Herald’s Inside Track reported shortly after Brad Delp’s 2007 suicide that she blamed her ex-husband’s death on Scholz.

But Cratsley’s decision goes on to say that some of the Herald’s reporting that might be found libelous was not traceable to Micki Delp:

While Micki’s statements speak to Brad’s “dysfunctional professional life,” … it is the Boston Herald writers who create the connection to Scholz and the possible implication that Scholz was responsible for the “dysfunction” and thus, Brad’s suicide.

Cratsley said that Micki Delp made six statements to the Herald (two of which she denied having made) and that those statements were about her ex-husband and his state of mind — not about Scholz. “The Herald writers, for whatever reason, added Scholz’ name and his quotes [in response to Micki Delp’s statements],” the judge wrote. “So if there is any possibility that the article is ‘of and concerning’ Scholz, it is the Herald writers’ doing.” (“Of and concerning” is a reference to one of the legal standards for proving libel.)

As I wrote earlier this year, it would have a chilling effect if the Herald were held liable for statements by Micki Delp whose veracity the newspaper had no reason to doubt. But if Scholz’ lawyer, Howard Cooper, is able to show that the Herald libeled him on its own, without any reliance on Micki Delp, then that would be another matter entirely.

I realize this is all a bit murky. I hope one of our legal bloggers takes this on in the next day or so.

Intimidation, free speech and Barstool Sports

(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.

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.

Norfolk DA, OpenCourt battle over video archives

A suspect’s lawyer blurts out the name of a 15-year-old girl whom prosecutors say was forced into prostitution. Several newspaper reporters hear the name. Even though they have the right to use it under the First Amendment, it’s understood that they won’t — it would be unethical journalistically, it would compromise the criminal case and it would traumatize the alleged victim.

Despite all that, the district attorney’s office goes to court to prevent a news organization’s video from being posted online, even though the folks who run that organization say they have no intention of uploading it until the identifying information has been removed.

In essence, that’s how OpenCourt characterizes a lawsuit brought by Norfolk District Attorney Michael Morrissey, which will be heard before Supreme Judicial Court Justice Margaret Botsford later today. The Boston Globe reports on the suit here; WBUR Radio (90.9 FM), with which OpenCourt is affiliated, reports on it here; and Open Court has its own take, with lots of background material, here.

Headed by WBUR’s executive editor for new media, John Davidow, OpenCourt received a $250,000 Knight News Challenge grant to livestream court proceedings and to make it easier for journalists, both professional and citizen, to provide coverage via Twitter and live-blogging. OpenCourt began livestreaming from Quincy District Court in May.

The issue of archiving those videos has proved to be contentious, with Morrissey’s office arguing that the archives — including the one involving the 15-year-old — could compromise “the privacy and safety of victims and witnesses.” Davidow responds that OpenCourt would be guided by the same ethical guidelines as any news organization, and that a legally imposed ban would be an unconstitutional abridgement of free speech. Davidow tells the Globe’s John Ellement:

This is really taking reporting that is done every day and then trying to take the editorial aspects away from journalists and put them in the hands of the state to decide what is published and what is not…. [O]nce we lawfully covered a story that was published, then it is up to the news organization to decide what to do with that material.

What Morrissey’s office is trying to do is to take long-established customs recognized by journalists and law-enforcement authorities alike and codify those customs into law, even though there is no reason to believe OpenCourt would act less responsibly than, say, the Quincy Patriot Ledger. It would set a dangerous precedent, and I hope the SJC does what is clearly the right thing.

The Globe, the Times and RFK’s papers

There’s been a pretty interesting development in the battle over Robert Kennedy’s papers. The New York Times reports that members of Kennedy’s family are unhappy with the John F. Kennedy Library in Boston, and may move the papers to George Washington University.

The story also says the family decided on March 1 to release 63 boxes of papers, some of them “dealing with Cuba, Vietnam and civil rights, [that] are classified as secret or top secret.”

These would appear to be the “54 crates of records” that the Boston Globe revealed last January were being withheld from all but a few favored historians. At that time, Robert Kennedy’s son Max placed his foot firmly in his mouth, telling the Globe’s Bryan Bender that he’s all for openness except in those cases when he’s not.

“I do believe that historians and journalists must do their homework, and observe the correct procedures for seeking permission to consult the papers, and explain their projects,” Max Kennedy was quoted as saying. Max’s boffo performance led me to bestow a Boston Phoenix Muzzle Award upon him recently.

In the Times story, there is no mention of Max. Instead, another of Robert Kennedy’s sons, former congressman Joe Kennedy, emerges as the family spokesman, and he comes off as considerably more diplomatic than his younger brother.

A search of the Globe and Times archives shows that the family’s March 1 decision to release the papers was not reported prior to today’s Times story. That suggests a deliberate strategy of working hand in hand with Adam Clymer, the retired Times reporter who gets the lead byline today. Clymer, you may recall, is the author of “Edward M. Kennedy: A Biography,” a respected though admiring treatment of the late senator published in 2000.

All in all, fodder for a follow-up by Bender.

Library of Congress photo via Wikimedia Commons.

Talking Muzzles tonight with Dan Rea

I’ll be on “NightSide with Dan Rea” on WBZ Radio (AM 1030) tonight at 9 to talk about the Boston Phoenix Muzzle Awards for 2011. It’s an annual Fourth of July tradition that goes back to the late, great David Brudnoy. Hope you can tune in.

Presenting the 14th annual Phoenix Muzzle Awards

The 14th annual Boston Phoenix (and Portland Phoenix and Providence Phoenix) Muzzle Awards are now online and in print, pillorying New England enemies of free speech in Greater Boston, Maine and Rhode Island, from Max Kennedy to Tom Menino. But we begin with some tough words about President Obama.

My friend Harvey Silverglate has written a companion piece on free speech on college campuses.

Sadly, since I first began writing this Fourth of July feature in 1998, finding suitable recipients has only gotten easier.

Norfolk DA seeks to close a window at OpenCourt

OpenCourt, an ambitious project affiliated with WBUR Radio (90.9 FM) that’s designed to shine some sunlight on court proceedings, has been dealt a setback at the hands of Norfolk County District Attorney Michael Morrissey.

Last week OpenCourt began webcasting a livestream from Quincy District Court. But several days into the experiment, Morrissey asked that archives of the video stream be closed to the public. A motion (pdf) filed by his office claims that “the privacy and safety of victims and witnesses could be seriously compromised,” especially in cases involving gang violence. The motion cites the possibility that the jury pool could be tainted as well.

The OpenCourt blog responds:

The letter and the motions came as a great surprise to us, since we have for the past four months met with all stakeholders of the court, including the District Attorney, to ensure we implement this groundbreaking pilot project responsibly and respectfully.

While we will continue to record sessions, we have voluntarily decided to suspend posting the archives until sometime after May 18, 2011, as we try to work out a practical solution to the concerns raised by the District Attorney.

“It’s a pilot,” Davidow recently told Justin Ellis of the Nieman Journalism Lab. “It’s now a reality and off the white board. More and more issues will come forward.”

What makes this sticky is that OpenCourt has no First Amendment right to archive its video, or even to livestream. The project is entirely dependent on the goodwill of court officials. Yet the traditional closed-door mentality of our justice system helps foster suspicion and cynicism — exactly the negative attitudes that Davidow and company are trying to break down by making it easy for us to see exactly what takes place.

Let’s hope Morrissey thinks better of his knee-jerk reaction to openness and gives OpenCourt the room it needs to keep moving forward.

Note: OpenCourt’s struggle with Morrissey is also being tracked by the New England First Amendment Center at Northeastern University, to whose blog I occasionally contribute.

In Massachusetts, silence is literally golden

When state officials pay someone to go away, they often pay for that person’s silence, too. That’s what Boston Globe reporter Todd Wallack found in a review of “more than 150 large severance and settlement agreements signed by state agencies since 2005.”

More than half contained either a confidentialty or non-disparagement clause, and one in five contained both, Wallack reported in Sunday’s Globe. And the practice persists even though Attorney General Martha Coakley has ruled such clauses are illegal in most cases.

Wallack’s findings point to an unfortunate reality: Gov. Deval Patrick, despite his reformist credentials, is no more a fan of open government than his predecessors regarding information that could make him or his agency heads look bad.

As Wallack notes, it was a big deal when then-state treasurer Tim Cahill’s use of confidentiality agreements was exposed a few years ago. Now it turns out that the practice is far more widespread than anyone knew at the time.

Consider this story in context. In 2008, Colman Herman reported for CommonWealth Magazine that the public-records law was a shambles, and that Patrick — like his predecessors — had made it be known that he considered many of the executive branch’s actions to be exempt from the law, a questionable proposition. (Note: I have contributed articles to CommonWealth, and my Northeastern colleague Walter Robinson is quoted in Herman’s story.)

Patrick was portrayed as having turned over records voluntarily despite his contention that he didn’t have to. But for advocates of open government, it’s clear that what’s needed in Massachusetts is root-and-branch reform. Anyone want to guess at the chances of that happening?

Update: Herman reports on some recent efforts to strengthen the law in a post for the New England First Amendment Center, but makes it clear that we’re a long way from true transparency.

Photo (cc) by Scott LaPierre via Wikimedia Commons. Some rights reserved.