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Mississippi Today will not have to turn over confidential documents as a judge dismisses ex-governor’s libel suit

Former Mississippi Gov. Phil Bryant. Photo (cc) 2019 via Wikimedia Commons.

The nonprofit news organization Mississippi Today will not have to turn over confidential internal documents, as a judge has dismissed a libel suit brought by former Gov. Phil Bryant, Grant McLaughlin reports in The Clarion-Ledger of Jackson, Mississippi.

County Judge Bradley Mills’ ruling means that Mississippi’s shield protections for journalists, regarded as among the weakest in the country, will not be put to the test. Mississippi Today said in a message to its readers:

For the past 22 months, we’ve vigorously defended our Pulitzer Prize-winning reporting and our characterizations of Bryant’s role in the Mississippi welfare scandal. We are grateful today that the court, after careful deliberation, dismissed the case.

The reporting speaks for itself. The truth speaks for itself.

Bryant sued after Today, led by reporter Anna Wolfe, reported that he had been involved in a state welfare scandal that also implicated former NFL quarter Brett Favre. Wolfe won a Pulitzer Prize, but Bryant claimed that Today’s publisher, Mary Margaret White, falsely suggested at a speaking event that Bryant had broken the law. White apologized and said she had misspoken. The news outlet itself has not retracted any of its reporting.

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Bryant sought access to internal communications in an attempt to show that Wolfe and her colleagues had committed “actual malice” — that is, that they knowingly or recklessly reported untrue facts about Bryant.

Despite last week’s good news, Mississippi Today may not be out of the woods yet. Ashton Pittman reports in the Mississippi Free Press, another nonprofit news organization, that Bryant’s lawyer plans to appeal and that he expects the case will eventually end up before the state supreme court.

“Gov. Bryant remains confident in the legal basis and righteousness of this case,” attorney Billy Quin told Pittman.

Under the First Amendment, reporters do not have a constitutional right to protect their anonymous sources or confidential documents. States are free to enact shield protections, and 49 states have done so; Wyoming is the lone exception.

But Mississippi — and, for that matter, Massachusetts — is on the weak end of those shield protections. Both states’ protections are based on state court precedents rather than a clearly defined shield law. The Reporters Committee for Freedom of the Press regards Mississippi and Massachusetts as being among the eight worst states, following Wyoming, with regard to a journalist’s privilege.

That lack of strong protection came into play in Massachusetts recently when Superior Court Judge Beverly Cannone ruled Boston magazine reporter Gretchen Voss would be required to turn over off-the-record notes from an interview she conducted with high-profile murder suspect Karen Read. Cannone later reversed herself.

Thus in both Mississippi and Massachusetts the courts have declined to issue a ruling that would force a definitive decision as to whether reporters in those states have shield protections or not.

Another Mass. judge orders a magazine to turn over its reporting materials; plus, media notes

Illustration produced by AI using DALL-E

One step forward, one step back.

Less than two weeks after state Superior Court Judge Beverly Cannone reversed herself and ruled that Boston magazine reporter Gretchen Voss did not have to turn over notes she took during an off-the-record interview with murder suspect Karen Read, another judge is demanding that a journalist assist prosecutors in a different murder case.

On Monday, Superior Court Judge William Sullivan ordered that The New Yorker produce audio recordings of interviews with the husband of Lindsay Clancy, who’s been charged in the killing of her three children at their Duxbury home.

And there’s more, according to Boston Globe reporter Travis Andersen, who writes that the magazine will be required to produce “all audio recordings of Patrick Clancy, two of his relatives, and two friends who spoke to the magazine for a story that ran in October” as well as “relevant interview notes, text messages, voicemails, and emails in possession of the publisher or reporter Eren Orbey.” Orbey’s story on the Clancy case was published last October.

I would assume that The New Yorker and its corporate owner, Condé Nast, will appeal, although the Globe story doesn’t address that issue. Last Friday, Charlie McKenna of MassLive reported that Judge Sullivan had allowed the prosecution’s motion for The New Yorker’s reporting materials and that Clancy’s lawyer, Kevin Reddington, did not object. The magazine had not responded to the demand, a prosecutor told Sullivan.

There is no First Amendment right for reporters to protect their confidential sources or, as in this case, their reporting materials. Massachusetts does not have a shield law, and protections based on state court precedent are regarded as weak.

The problem is that forcing reporters to turn over their notes, recordings and other materials transforms them into an arm of the prosecution and interferes with their ability to do serve as an independent monitor of power. Sullivan made the wrong call, and I hope he — like Judge Cannone — has second thoughts.

Media notes

• That didn’t take long. After Google Maps changed “Gulf of Mexico” to “Gulf of America,” opponents of Donald Trump took to social media to announce that they were moving to other platforms. Well, on Tuesday evening Microsoft and Apple began to follow suit. Honestly, no one should have been surprised.

• The fracturing continues. BuzzFeed may become the latest company to unveil an alternative to Twitter/X, according to Max Tani of Semafor, as it seeks to offer “an alternative to the rightward, masculine drift of American public culture.” Well, good luck with that. After shutting down its news division, BuzzFeed is now cutting its HuffPost subsidiary. I have to say that Bluesky is working pretty well for me as my main short-form social-media outlet.

• Back to his roots. U.S. Sen. Dick Durbin, D-Ill., is demanding answers from Meta CEO Mark Zuckerberg about ads running on Instagram for a program that uses artificial intelligence to create fake nude photos of real people. The ads violate Meta’s terms of service, reports Emanuel Maiberg of 404 Media. But let’s not forget that Zuckerberg created a predecessor site to Facebook as a way to rate the hotness of Harvard women.

Boston magazine ruling advances press freedom; plus, a tale of two obits, and the late Ted Rowse

Some very good news for freedom of the press in Massachusetts: Superior Court Judge Beverly Cannone has ruled that Boston magazine reporter Gretchen Voss will not be compelled to produce notes she took from an off-the-record interview with murder suspect Karen Read (earlier coverage).

The ruling was first reported by Lance Reynolds of the Boston Herald.

Cannone’s decision reverses an order she had issued in December that would have required Voss to turn over her notes. In so doing, the judge found that those notes “are of a different character than the unredacted recordings of the ‘on the record’ interviews produced pursuant to the Court’s previous order.” Cannone continues:

Voss has articulated a compelling argument that requiring disclosure of the notes poses a greater risk to the free flow of information than the other materials produced. Conversely, the Commonwealth [that is, the prosecution] has not demonstrated to the Court that its need for the handwritten notes, separate from the audio recordings, outweighs the danger posed to the public interest in the free flow of information.

What Cannone is referring to is her earlier decision to allow the prosecution access to recordings Voss had made in the course of interviewing Read. The judge’s new decision, handed down on Friday, pertains to handwritten notes that Voss had taken while conducting an off-the-record interview with Read in June 2023. In an affidavit, Voss said:

The entire meeting was off the record; I agreed in advance with Ms. Read and her lawyers that if there were any quotes I wanted to attribute to her during this meeting, I would need her and their express permission. As I did not actually use any of Ms. Read’s statements from that meeting in the article, such permission did not end up being necessary.

Moreover, Voss said, being forced to turn over her notes would open herself up to a campaign of villification that began after her article about the case was published in September 2023 and had only recently begun to abate:

[T]he notes, standing alone, will likely require further explanation on my part to make sense of them. I have already suffered an enormous emotional toll from publishing this story: I have been routinely harassed, both online and in person; have received text messages from strangers to my private cell phone containing photographs of my children and indirect threats against them; have had my photograph posted without my consent on Facebook, with hordes of strangers accusing me of unethical behavior and other defamatory accusations; have been approached, verbally assaulted and photographed without my consent in public, including in the courthouse, among many, many other acts and incidents against my person, my family, my character and my career. While the level of harassment has subsided somewhat over time, I have no doubt it will pick up again if my interview with Ms. Read becomes an issue for debate at trial.

A separate affidavit was submitted by BoMag editor Chris Vogel, who said that allowing Cannone’s earlier order to stand would impede investigative reporting because it would increase the costs and resources necessary to produce such work. “Magazines like ours will not be able to risk becoming enmeshed in situations such as this one, with the result that the flow of vigorous reporting will suffer,” Vogel said. “We will feel we have no choice but to select tamer, less controversial topics for our coverage.” Continue reading “Boston magazine ruling advances press freedom; plus, a tale of two obits, and the late Ted Rowse”

Boston Globe Media acquires Boston magazine, closing a deal that was reported here first

Boston Globe Media is acquiring Boston magazine, thus consummating a deal whose existence I revealed on Dec. 6. The glossy monthly, which combines lifestyle features with some serious investigative reporting, will continue with its current staff, as Globe media reporter Aidan Ryan writes that no one will lose their jobs in the transaction. Globe Media CEO Linda Henry is quoted as saying:

As so many other iconic publications that once shaped our city have faded away, we feel an immense responsibility to honor and preserve Boston magazine’s legacy. This is not just about sustaining a magazine — it’s about strengthening a cornerstone of Boston’s identity and ensuring its stories continue to inspire, connect, and resonate with our community for generations to come.

It will be interesting to see how the Globe integrates BoMag with its existing Sunday magazine given that the two publications overlap to some extent.

Boston magazine was purchased in 1970 by the late D. Herbert Lipson from the city’s chamber of commerce. Lipson, who was based in Philadelphia, was also the owner of Philadelphia magazine and was involved in several other publishing ventures over the years as well. The company he created, Metrocorp, is still family-owned, with his son David H. Lipson Jr. serving as chairman and CEO.

BoMag’s circulation is around 55,000, down from 75,000 in 2018, according to Ryan’s story.

Back when I was working for The Boston Phoenix, we considered Boston magazine to be one of our principal rivals given that its mix of long-form reporting, arts and culture was in our wheelhouse as well. The Phoenix closed in 2013, and BoMag has carried on in an increasingly difficult media environment.

The Globe, meanwhile, is profitable and growing, although it’s been making some cuts recently. Among other things, the paper has ended my former Phoenix colleague Nina MacLaughlin‘s excellent Sunday column as it dials back its coverage of books. Boston is a literary hub, and I hope the editors will reverse that ill-considered decision.

In addition to Boston magazine and the Globe itself, Globe Media publishes a free website, Boston.com, and Stat News, which covers health and medicine.

Update: A couple of sources just forwarded to me Linda Henry’s email to the staff. Here it is:

Dear Boston Globe Media Team —

We are thrilled to formally welcome Boston Magazine into the Boston Globe Media fold today as we work to connect our award-winning journalism to more audiences.

While many regional magazines in our area have faded away over the years, Boston Magazine has been an important chronicler of the people and culture of Boston for over six decades. For so many families in our community, The Boston Globe is on their kitchen table each day and BostonMagazine is on their coffee table each month, two publications serving the same region in different ways.

A bit of background: The Lipson family, owners of Philadelphia magazine, acquired Boston Magazine from the Boston Chamber of Commerce in 1970. The two publications operated under Metro Corp, based in Philadelphia. Following the passing of founder Herb Lipson in 2017, the company came under the leadership of his three children, with his son David taking the helm. The family made the decision to sell the whole company, leading to a long and complex process. We are delighted to announce that Boston Globe Media has acquired just Boston Magazine from Metro Corp, bringing this enduring publication under local stewardship.

I’m pleased to share that the entire Boston Magazine team has been given offers to retain their current positions, and we’ve been working diligently to ensure a seamless transition of operations. In the coming months and in our next Town Hall meeting on Monday, February 10, we will share more on our strategy and plans.

A heartfelt thank you to the fantastic Globe team who worked tirelessly to make this happen. To our new colleagues, welcome! We look forward to collaborating and continuing to find ways to better serve our community.

Warmly,
Linda

Accessibility, context, empathy: My students’ ideas to enhance the SPJ’s Code of Ethics; plus, media notes

Reporters taking notes — Photo (2017) by Portable Antiquities Scheme

This has become a perennial. Every semester, I ask students in my journalism ethics class to come up with a fifth principle that could be added to the Society of Professional Journalists’ Code of Ethics. The code identifies four broad principles: Seek Truth and Report It; Minimize Harm; Act Independently; and Be Accountable. Each of them is fleshed out in some detail.

On Wednesday evening, I asked my current class, a small seminar comprising graduate students and advanced undergrads, to think of a fifth principle in three teams of three students apiece. Here’s what they came up with. I’ve done some minor editing in the interests of parallel construction, but otherwise this is entirely their work.

Ensure accessibility for your audience

Use plain language whenever possible.
Use multiple formats and multimedia as resources permit.
Reporters and sources should reflect the diversity of the community.
Neighborhoods and areas within the coverage area should be covered equitably.
A news organization’s website and social media should be ADA accessible.*️⃣

Place news coverage in context

Provide the full picture of all aspects of a story.
Give credit where it is due, especially to other news organizations.
Acknowledge relevant communities, perspectives and historical background.
Provide needed follow-up for the audience.

Balance empathy and professionalism

Show respect for sources and subjects of coverage.
Create a relationship that enables your source to trust your intentions.
Clarify to your source the scope of the article and how they might be affected after publication.
If you maintain relationships with sources, limit that to professional contacts rather than personal friendships.

*️⃣ There are, in fact, resources for ensuring that a website is compliant with the Americans with Disabilities Act. As for social media, users are often encouraged to add text to images so that people with visual impairments can understand what an image represents. Hashtags should use upper- and lower-case in instances where confusion might result — for instance, screen-readers might trip up on the hashtag #firstamendment, so use #FirstAmendment instead.

Media notes

• Post journos petition Bezos. Since Jeff Bezos has clearly lost interest in The Washington Post, you have to wonder if he might disentangle himself from a property that he has clumsily described as a “complexifier” for him. The latest, according to NPR media reporter David Folkenflik, is that some 400 Post journalists have signed a letter asking that Bezos meet with them. The letter says in part: “We are deeply alarmed by recent leadership decisions that have led readers to question the integrity of this institution, broken with a tradition of transparency, and prompted some of our most distinguished colleagues to leave.”

• Muzzle Award follow-up. An order to the police chief in Burlington, Vermont, that he route all communications through the mayor’s office came at the instigation of Chittenden County State’s Attorney Sarah George, reports Colin Flanders of Seven Days. I gave Mayor Emma Mulvaney-Stanak a New England Muzzle Award for silencing Police Chief Jon Murad and, more seriously, for following up by scheduling a press availability but failing to invite all of the city’s news organizations. George was concerned about Murad’s public statements disparaging a notorious repeat offender, calling one statement “unnecessary and performative” and saying that he “really needs to knock it off.”

• Judge gets access to BoMag notes. Superior Court Judge Beverly Cannone has received off-the-record notes from Boston magazine reporter Gretchen Voss’ July 2023 interview with murder suspect Karen Read, who will soon return to court following a mistrial last year, reports Travis Andersen in The Boston Globe. Judge Cannone will privately review the notes before ruling on whether to grant the prosecution’s request for access to Voss’ reporting materials. BoMag has fought that effort on freedom-of-the-press grounds; more background here.

Uri Berliner’s disingenuous critique of NPR was the most-viewed Media Nation post of 2024

Robert Mueller. Photo (cc) 2012 by the White House.

On this last day of 2024, I’m taking a look back before we plunge ahead into the new year. Media Nation’s 10 most viewed posts for the year range from my takedown of an intellectually dishonest critique of NPR, to CBS News’ reprimand of an on-air host for being too confrontational with a guest, to news that The Boston Globe is seeking to acquire Boston magazine. So let’s get right to it.

1. Fish in a barrel: Berliner’s case against NPR is based on false and out-of-context facts (April 11). Uri Berliner, a top editor at NPR, created a stir when he accused his employer of liberal bias in a long essay for The Free Press. The problem was that his examples didn’t hold up to scrutiny. To name just one: Berliner wrote that NPR failed to confess its sins after special counsel Robert Mueller found “no credible evidence” that Donald Trump had colluded with Russia, which isn’t even remotely what Mueller reported. There was a lot more disingenuousness where that came from. Berliner ended up resigning his post at NPR and going to work for — yes, The Free Press.

2. Less news, more happy talk: Why CBS News’ reprimand of Tony Dokoupil is so ridiculous (Oct. 8). Journalist and author Ta-Nehisi Coates popped up on the CBS morning newscast to promote latest book, “The Message,” and faced an unexpectedly tough grilling over his anti-Israeli views from co-host Tony Dokoupil. Among other things, Dokoupil told Coates that his book woudn’t be out of place “in the backpack of an extremist.” Coates gave as good as he got, and he probably sold a few more books than he otherwise would have. Nevertheless, CBS News management called Dokoupil on the carpet — probably because his attempt to commit journalism contradicted the light banter that defines the morning-news format.

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3. A riveting Boston Globe story about a medical disaster with ties to the local news crisis (Jan. 29). A Globe report about the death of a new mother at St. Elizabeth’s Hospital had something in common with the same forces that have hollowed out much of the local-news business. The mother’s death may have been caused by the hospital’s lacking a basic piece of equipment that had been repossessed because its corporate owner, Steward Health Care, wasn’t paying its bills. Steward, in turn, had been pillaged by a private-equity firm, Cerberus Capital Management, which is the same outfit that helped the notorious newsroom-gutting hedge fund Alden Global Capital acquire Tribune Publishing’s nine major-market daily newspapers in 2021.

Continue reading “Uri Berliner’s disingenuous critique of NPR was the most-viewed Media Nation post of 2024”

Exclusive: Boston Globe Media is looking to buy Boston magazine

Boston Globe Media is exploring a possible acquisition of Boston magazine, according to sources in the newsroom who had heard about the plans and who asked not to be identified. The glossy monthly would become part of a portfolio of media properties that includes The Boston Globe, the free website Boston.com and Stat News, which covers medicine and the health-care industry.

When asked about Globe Media’s interest in BoMag, the company responded with a statement:

Boston Globe Media continuously evaluates opportunities for growth that align with our business strategy, and our success as a dynamic media organization is due in part to our desire to adapt and evolve along with our audiences. We cannot disclose any current opportunities at this time. We will stay in touch.

If the deal is consummated, it would be a significant move by Globe owners John and Linda Henry, who have built one of the country’s few growing and profitable major metropolitan newspapers. Boston magazine, by contrast, has gone through several rounds of budget cuts in recent years.

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BoMag is best known for its annual Best of Boston rankings of everything from restaurants to kids’ activities as well as gauzy features on lifestyle, culture and real estate, as is characteristic of city magazines.

But it also publishes in-depth news stories, such as Gretchen Voss’ memorable 2023 story about a long-running battle between Everett Mayor Carlo DeMaria and the Everett Leader Herald, one of that city’s three independent weekly newspapers. Voss reported that Leader Herald editor Josh Resnek, in the course of being deposed in a libel suit brought against him and the paper by DeMaria, admitted he’d engaged in fabrication in his stories accusing the mayor of corruption.

Another Voss story is currently the subject of a court battle over anonymity in the notorious Karen Read murder case. On Thursday, the Globe reported that Judge Beverly Cannone had ordered Voss and the magazine to turn over off-the-record and redacted notes from interviews that Voss had conducted with Read for a story that was published last fall.

BoMag attorney Rob Bertsche was quoted as saying that the case illustrated the need for a state shield law to protect journalists’ confidential sources and documents. “The judge’s decision today illustrates a harsh truth: In Massachusetts, in the absence of a shield law, a court will not necessarily protect an investigative reporter’s promise to keep certain information confidential,” Bertsche told the Globe in a statement.

The Karen Read case shows why we need a shield law; plus, a State Police outrage, and Trump and the press

Massachusetts is one of eight states with the weakest level of protection for journalists’ confidential sources and materials

Prosecutors in the Karen Read murder trial are asking that a judge order Boston magazine to turn over unredacted audio recordings, notes and other materials stemming from a story about the case written by reporter Gretchen Voss that was published in September 2023.

The request raises some uncomfortable questions about freedom of the press. Kirsten Glavin, reporting for NBC10 Boston, writes that the magazine’s lawyer has argued previously that journalists have a right to protect off-the-record information. But that right — known as the journalist’s privilege — is tenuous in Massachusetts.

According to Glavin, Judge Beverly Cannone had previously granted access to audio of Read’s on-the-record interviews with Voss. Now the prosecution is seeking the full, unredacted recordings, which would include off-the-record statements by Read.

Michael Coyne, NBC10’s legal analyst, is quoted as saying that the prosecution’s strategy appears to be aimed at finding contradictions in what Read has said about the circumstances surrounding the death of her boyfriend, Boston police officer John O’Keefe. “The more information they gather, the more likely they’re going to start to uncover inconsistencies in the story and the like, and that’s all going to help them ultimately prove their case at trial,” Coyne said.

Read is accused of driving over O’Keefe while drunk and leaving him in a snowbank to die. She and her supporters contend that O’Keefe was beaten up in a nearby house and then dragged outside. Her first trial ended in a mistrial, and she is expected to be retried early next year.

The U.S. Supreme Court ruled in the 1972 case of Branzburg v. Hayes that the First Amendment does not provide for a journalist’s privilege and that reporters, like ordinary citizens, must provide testimony in court if ordered to do so.

At the state level, 49 states recognize some form of a journalist’s privilege, either through a shield law or judicial rulings. In Massachusetts, the privilege is based on the latter, as efforts to enact a shield law over the years have not gone anywhere. According to the Reporters Committee for Freedom of the Press, that places the Bay State among the eight states with the weakest protections for reporters seeking to guard their anonymous sources and off-the-record materials.

Not even shield laws provide absolute protection for the press. Nevertheless, such a law in Massachusetts is long overdue.

That will be $176k, please

In another case that raises concerns about freedom of the press in Massachusetts, Kerry Kavanaugh of Boston 25 News reports that the State Police have told the station it will have to fork over some $176,000 for records about the State Police Training Academy — and that’s just so the scandal-ridden agency can review those records to determine if they are public or not.

“Again, please note that the majority of the responsive records may be exempt in their entirety from disclosure,” the agency told her in a response to her public records request.

Kavanaugh, an investigative reporter and anchor for Boston 25, writes that the station began seeking the records following the sudden death of Enrique Delgado Garcia, a recruit who collapsed while taking part in a boxing match that was part of his training.

She also quoted Justin Silverman, executive director of the New England First Amendment Coalition, as saying:

We shouldn’t have to pay almost $200,000 to get this information. These are our tax dollars that are being spent on the state police training program. And we have a right to know whether or not that program is operating safely or whether it’s just teeing up another tragedy to occur somewhere down the road.

The state’s public records law is notoriously weak. In 2017, though, Gov. Charlies Baker signed into law a reform measure that, according to the ACLU of Massachusetts, “set clear limits on how much money government agencies can charge for public records.”

By demanding nearly $200,000 merely to screen its records to make its own determination as to whether they are public or not, the State Police may be in violation of that provision.

Kavanaugh writes that rather than paying the outrageous fee, her station is working with the State Police and has filed an appeal with the secretary of state’s office.

Journalism in the Age of Trump II

What will be the fate of journalism in the Age of Trump II? Poynter Online media columnist Tom Jones asked several folks (including me) what role the press played in Trump’s victory over Kamala Harris and what the next four years may look like. I think this observation from NPR TV critic Eric Deggans is especially on point:

The bubble of conservative-oriented media has distorted what many people even believe is fair news coverage and increased the amount of misinformation and disinformation in the public space. But I think one of the biggest problems facing mainstream news outlets now is the belief among nonconservative consumers that coverage of this election cycle let them down by “sanewashing” and normalizing Trump’s excesses. Traditional journalists who have already lost the confidence of conservative consumers are now facing diminishing trust from the news consumers who are left, which is not a great combination.

A Mass. judge weighs whether to compel a journalist to turn over her interview notes

An important press freedom case is playing out in a Dedham courtroom, where a prosecutor has asked a judge to force a reporter for Boston magazine to turn over her interview notes.

The magazine reporter, Gretchen Voss, wrote a lengthy article last September about Karen Read, a Mansfield woman who’s been charged with second-degree murder in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. The case is massively complicated and has become emotionally fraught, as supporters of Read have accused authorities of staging an elaborate coverup. Essentially, though, Read has been charged with running over O’Keefe with her SUV while under the influence of alcohol and leaving him to die in a snowbank. Read and her supporters counter that O’Keefe was severely beaten inside the Canton home of a fellow officer and dragged outside, where he died.

Ironically, a hearing into whether Voss would be compelled to turn over the notes of her interviews with Read was held on the same day that Congress took a rare bipartisan step toward granting journalists the right to protect their sources. More about that below.

According to an account by Ivy Scott and Travis Andersen in The Boston Globe, Norfolk District Attorney Michael Morrissey has asked Superior Court Judge Beverly Cannone to demand that Voss cooperate with the prosecution by producing her notes of what Read told her off the record. Voss replied that she would be willing to testify about the article that Boston published, but that going beyond that would be a violation of her First Amendment right to protect her sources. The magazine’s attorney, First Amendment lawyer Robert Bertsche, said the prosecution was demanding that Voss help them compile evidence to help with their case, “which was outside the scope of the law,” as the Globe summarized Bertsche’s argument.

“You can be sure if Karen Read confessed in her interview with Gretchen Voss,” Bertsche added, “that would have made it into the article.”

The Globe also quoted Assistant District Attorney Adam Lally as saying that there is “no reporter privilege in the Commonwealth of Massachusetts.” That’s true, but it’s also complicated.

Massachusetts is one of 49 states that offer some protection to journalists to protect their sources, either through a shield law or rulings by their state’s courts. (Wyoming, by the way, is the sole exception.) There is no shield law in Massachusetts, nor has the state’s Supreme Judicial Court ever ruled that there is a reporter’s privilege. But according to an overview compiled by the Reporters Committee for Freedom of the Press (RCFP), the courts in Massachusetts have recognized that journalists may have a limited right to protect their sources. The overview begins:

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter’s privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.

That balancing test is about as good as it gets in any state, since the reporter’s privilege is not absolute. Way back in 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment provides no such protection, although the convoluted ruling suggested that judges should balance concerns about press freedom with the need to compel testimony. What will happen in the Karen Read prosecution is that Judge Cannone will decide whether the information Voss has is so important to the case, and unobtainable from any other non-journalistic source, that she should be compelled to turn it over.

A complicating factor is that no journalist would cooperate with such a demand, leading to the possibility that Voss could be held in contempt of court. One of the more notable Massachusetts examples of that took place in 1985, when WCVB-TV (Channel 5) reporter Susan Wornick narrowly avoided a three-month jail sentence when the source she was protecting in a police corruption case came forward and agreed to cooperate with the prosecution.

As anyone who’s been following the Karen Read case knows, I’m only chipping away at a tiny piece of it. Also on Thursday, Read’s lawyers argued that correspondence between District Attorney Morrissey and the U.S. attorney’s office should be made public and that Morrissey should be disqualified. Federal authorities are investigating how the district attorney’s office has handled the case, although the nature of their investigation has not been made public.

Finally, blogger Aidan Kearney, who goes by Turtleboy, and who has taken Read’s side, is currently being held in custody on charges of witness intimidation and domestic assault and battery. Kearney and his supporters claim those charges were filed in retaliation for his crusade on Read’s behalf.

As I wrote up top, all of this is playing out against the background of a positive step taken by Congress. Despite the existence of some shield protections in 49 states, there is no shield law at the federal level. On Thursday, though, the House unanimously passed the PRESS Act, which the the RCFP describes as “a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.” The sole exceptions, according to a summary of the bill, would be in “limited circumstances such as to prevent terrorism or imminent violence.”

Given that the Republican House was able to act for all its dysfunction, there would appear to be reason for optimism that the Senate will approve the measure as well.

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BoMag and the Globe offer dueling theories about who shot David Ortiz

David Ortiz celebrates the first of his three championships with the Red Sox. Photo (cc) 2013 by Colin Steele.

Boston magazine and The Boston Globe published dueling stories over the weekend that recount the 2019 shooting of Red Sox legend David Ortiz.

The Boston magazine story, by Mike Damiano, appears to have been many weeks, if not months, in the making — it’s a rich, deeply reported story about Ortiz’s life in the Dominican Republic and his complicated family situation. The Globe article, by Bob Hohler, may have been assigned (or least put on the fast track) in reaction to BoMag. It’s a newsy account of that attempts to get to the bottom of who ordered Ortiz’s shooting, and why.

By all means, read both. But by far the most interesting detail is the dueling theories about the role of a major drug trafficker, César Peralta, known as “The Abuser.” According to the Globe’s account, former Boston police commissioner Ed Davis, who was hired by Ortiz to investigate the shooting, Peralta is in fact the guy who ordered the hit. Hohler writes:

Davis, disclosing his findings for the first time, said the powerful and politically connected drug lord César “The Abuser” Peralta came to feel disrespected by Ortiz, prompting him to place a bounty on Ortiz’s head and sanction the ragtag hit squad that tried to kill him.

“Peralta said he had David shot,” Davis said in an interview, citing information that he said US law enforcement officials gathered and shared with him.

The BoMag story, on the other hand, all but rules out Peralta as having any role. Here’s what Damiano has to say:

As I, too, tried to get to the bottom of what caused the shooting, I found that the closer I got to people with genuine knowledge of the Santo Domingo underworld, the more skepticism I heard about the love-triangle theory and any possibility of Peralta’s involvement. One man I spoke with who knows many of the men in Peralta’s circle, as well as some of the men accused of involvement in the shooting, said that the theory was bunk. No part of it added up, he said, and hardly anyone in his neighborhood — Herrera, a hot bed of Dominican drug trafficking — believed it.

The two accounts also raise some questions about access. The Globe’s owner and publisher, John Henry, is also the principal owner of the Red Sox. Davis is a security consultant for the Globe. It does not appear that Davis shared his theory about Peralta with BoMag.

Both stories dismiss the widely mocked theory put forth by Dominican authorities that Ortiz was the victim of mistaken identity.

The conclusion I took away from Damiano’s and Hohler’s reporting was that we may never know who ordered the hit on Ortiz. I’m just glad he’s still with us.

Footnote: I’m told that Damiano has been hired by the Globe.

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