Tag: First Amendment

The iron lady versus the press

The Watertown Tab & Press will be in Waltham District Court today to argue that a subpoena brought against one of its reporters should be dropped. The subpoena was filed by town council member Marilyn Devaney, who faces charges that she threw a box containing a curling iron at a clerk in a Waltham store in April 2007.

Devaney wants Tab reporter Jillian Fennimore to testify about her knowledge of the case. But Fennimore, through Tab lawyer (and Friend of Media Nation) Rob Bertsche, counters (PDF) that Fennimore has no direct knowledge of what happened, covering the story only through “the traditional tools of journalism: official police reports, interviews with witnesses, and other shoe-leather reporting.”

Forcing Fennimore to testify, Bertsche adds, would have “the effect of preventing her [Fennimore] — the reporter with the most extensive knowledge of these proceedings — from reporting to the public about this criminal trial.” Such a result, Bertsche says, would interfere with the Tab’s newsgathering activities as protected by the First Amendment.

But Devaney’s lawyer, Janice Bassil, counters (PDF) that Devaney is entitled to know who supplied Fennimore with a Waltham police report labeled “Not for Public Release,” saying, “The information sought by the defendant goes to the heart of her claim for vindictive prosecution.”

That report, appended to Bassil’s brief, is highly entertaining. What allegedly set Devaney off was the clerk’s insistence that she couldn’t write a check without the proper ID. By far the best part is this quote from Devaney, which she allegedly spoke to the clerk shortly before hurling the bag at her: “Do you know who I am? I work for the Governor! I’m a lawyer! I’m in the Senate!”

Now, there are a few problems here. Assuming that Devaney knows what positions she holds, there is a good chance that she has been misquoted. She does not work for the governor, but she is a member of the Governor’s Council. She is not in the Senate, but, rather, serves on the Watertown Town Council. I could not immediately determine whether she’s a lawyer.

Devaney is something of a local legend — a contentious presence on the town council who has battled with her colleagues (there’s a whole section of Devaney clips on YouTube). As a Governor’s Council member, well, let’s just say she fits right in.

All kidding aside, it’s appalling that the Tab — part of the GateHouse Media chain — has been forced to spend one dime and devote more than one minute to fighting Devaney’s subpoena. Bassil, in her brief, makes a ludicrously offensive assertion:

The free flow of information will not be damaged as Ms. Fennimore will continue to be able to report on numerous matters similar to this so long as the information sought was authorized to be placed in the public domain.

This is a Soviet-style definition of journalism: Fennimore will continue to be able to do what is authorized, so where is the harm? I hope the judge can see through that and throws out Devaney’s subpoena with alacrity that it deserves.

Photo found on TheBeautyBrains.com.

Reporters won’t testify in Entwistle case

The trial of Neil Entwistle, accused of murdering his wife and baby daughter, is sure to be a spectacle. But here’s one spectacle you won’t be seeing: Judge Diane Kottmyer today ruled that two reporters will not be called to testify during a pre-trial hearing, writes David Frank of Massachusetts Lawyers Weekly.

Laurel Sweet and Michele McPhee reported in the Boston Herald in November 2007 that Entwistle had written a suicide note while in jail. Sweet, who’s still with the Herald, and McPhee, now a talk-show host for WTKK Radio (96.9 FM), got off the hook when prosecutors said they have no plans to introduce the suicide note at Entwistle’s trial. Call this an ever-so-slight victory for the First Amendment.

McPhee’s got a book coming out on the case next Tuesday.

Saturday morning roundup

If I were Ernie Roberts, the great Globe sports columnist, I’d tell you what I had for breakfast this Saturday morning. I’m not, so herewith a few observations about this and that.

Deval Patrick’s corporate benefactors. The drip-drip-drip over Gov. Patrick’s book proposal has been more a source of amusement than a cause for genuine concern. Today’s Globe story, in which we learn that he takes credit for the 10,000 people who turned out for a Barack Obama rally on the Common, is a hoot.

But yesterday’s Globe story properly noted a real problem — Patrick’s reliance on corporations, some of which will have business before the state, to buy books by the truckload in order to hand out to employees and clients. The impression you get is of a governor so convinced of his own rectitude that he believes he’s above the rules mere mortals have to follow.

Judge Murphy’s future on the bench. A Globe editorial today urges the state Supreme Judicial Court to suspend Judge Ernest Murphy, who was may be fined earlier this week for his bizarre and threatening letters to Herald publisher Pat Purcell after Murphy won a $2.1 million libel case against the Herald. [Correction: The Commission on Judicial Conduct has recommended that Murphy be censured, suspended for 30 days and fined $25,000.]

I assume the Globe means without pay. As a Herald editorial noted on Wednesday, Murphy has been out on paid leave since sometime last year, collecting his salary of nearly $130,000. It’s hard to think of a public official who has profited so handsomely from media criticism of his performance — which, no matter how imperfectly it may have been executed, is supposed to receive the highest possible protection from the First Amendment.

Helping the fans by gouging them. The Herald goes B-I-G today with the fact that the Red Sox are auctioning off Green Monster tickets to the highest bidder, with some seats going for more than $500.

The best quote is from Ron Bumgarner, the Sox’ vice president of ticketing: “We feel it’s our civic responsibility to keep tickets affordable for fans, and at the end of the day, this helps keep other ticket prices down.” You can’t make this stuff up.

Newspaper-killing chain faces death. The Journal Register Co., known within the business as the cheapest chain on earth, is sinking in a sea of debt and is in danger of being delisted by the New York Stock Exchange. The Journal Register’s best-known paper is the New Haven Register, but it also used to own the Taunton Gazette and the Fall River Herald News, now held by GateHouse Media. It also used to own the Woonsocket Call, where I was a co-op student in the mid-1970s.

Cape Cod Today publisher Walter Brooks sent out a blast e-mail with the news, which he titled “Every tear remained unjerked in its little ducts.” No kidding.

Another slap for Judge Murphy

This has become the story that won’t die, and I’m sick of it. So take it away, Jessica Van Sack:

The Commission on Judicial Conduct has recommended Superior Court Judge Ernest B. Murphy be publicly censured, suspended without pay for 30 days and fined $25,000 for sending two “bizarre” and “threatening” letters to the publisher of the Boston Herald.

Globe story here.

(Not) banned in West Roxbury

Anti-gay activist Robert Joyce is trying to get my old paper, the Boston Phoenix, banned in West Roxbury, the Roslindale Transcript reports. Joyce says he doesn’t like the Phoenix’s adult-oriented classified ads, although he adds that it would be OK if escort services offered chicken dinners.

One of Joyce’s targets, liquor store owner Gary Park, says Joyce threatened him if he continued to carry the Phoenix. Jessica Smith writes:

“He [Joyce] walked in here and instead of talking like a gentleman, he started making threats and giving me ultimatums,” said Park.

The threats include promises of a protest. Joyce said that while the group has yet to apply for a permit to protest, his organization was looking for volunteers to hold signs and to organize such an event. Still, that did not sway the man who owns Gary’s Liquors.

Park said he does not intend to stop carrying the publication that he has had in his store for years and is available for free all over the commonwealth.

“Mr. Joyce has way too much time on his hands. He should be helping homeless people and the elderly. If he doesn’t like the paper, then don’t come pick it up,” said Park, who stressed that his business caters to individuals who are age 21 and older.

Someone should tell Joyce that picking up a copy of the Phoenix every week is not mandatory. Although I recommend it.

By the way, the name of Joyce’s organization is the delightfully Orwellian Support Community Decency Inc. (Via Universal Hub, which also links to this story in the West Roxbury Bulletin.)

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.

A privilege for the privileged

Amy Gahran of the Poynter Institute writes that a proposed federal shield law would actually be a step backwards. Under the original version, the bill would protect “a person engaged in journalism” from having to reveal his or her anonymous sources, a definition seemingly elastic enough to cover bloggers.

The new version, by contrast, covers “A person who, for financial gain or livelihood [Gahran’s emphasis], is engaged in journalism,” which would largely restrict the shield law’s protections to professional journalists. Gahran writes:

Journalism is a practice, not a priesthood. At its core it’s about committing acts of journalism, not about getting a degree, being employed, or even getting paid. I think a federal shield law with such exclusive language would only serve to diminish the practice and independence of journalism, especially among people who are sticking their necks out entirely on their own to do it.

She adds that she hopes President Bush vetoes it. (Don’t worry; he will.)

As we’ve seen in recent years, journalists have no constitutional right to protect their anonymous sources if they’re call into court to testify. Judith Miller‘s case is the best-known, but there are many others as well.

Forty-nine states either have shield laws or state-court opinions that essentially require judges to consider all other options before forcing journalists to testify. But there is no such protection at the federal level, which is why Congress is now considering such legislation.

The trouble is, as Gahran notes, the First Amendment recognizes no special privileges for journalists as a class. Nor should it. The First Amendment is for all of us. By passing a shield law that protects journalism as an activity, Congress would be honoring the spirit of the First Amendment. The change Gahran rightly worries about would only protect members of the “priesthood.”

It would be interesting to learn why the language was changed, and who was behind it.

NPR’s “On the Media” has a good summation of the shield-law debate.

Putting Hopkins in her place

As I had hoped, Massachusetts Appeals Court Judge Andrew Grainger used some pretty strong language in explaining why he overturned Superior Court Judge Merita Hopkins’ prior-restraint order against WHDH-TV (Channel 7). The Boston Herald’s Jessica Heslam quotes from Grainger’s opinion:

As the judge noted in her order, the injunction is without doubt a prior restraint on speech.

[Channel 7] does not argue that it should be granted official access to the autopsy records; rather, it seeks to broadcast information already in its possession.

Simply put, the inability of the press to require the government to disclose information that is not part of the public record does not support a restraint on speech with respect to information already known to the press.

Indeed and famously, the presumption against prior restraints on free speech has prevailed even when the materials at issue are stolen and deal with issues of national security.

Grainger goes on to observe that, in this particular case, Hopkins’ error was compounded by the fact that her order didn’t even accomplish its objective — as it turned out, Channel 7, which had an exclusive, wound up being the only news organization not to report on the autopsy results.

Grainger’s tough words should stand as a warning to any judge who’s thinking of emulating Hopkins. It’s not enough that she has been overturned. It’s crucial that judges not abuse their power to hold up a story for a day or so and then punt to a higher court. If Hopkins isn’t embarrassed, she ought to be.

In the Boston Globe, columnists Joan Vennochi and Kevin Cullen weigh in. Cullen, joining those of us who believe Hopkins should have recused herself, observes that Hopkins hasn’t always been as solicitous of privacy rights as she was with respect to the fallen firefighters.

And, believe it or not, he brings it all back to Whitey Bulger. Boston is indeed a small town.

Herald admonishes Hopkins

The Boston Herald has a splendid editorial today on Judge Merita Hopkins’ unconstitutional order preventing WHDH-TV (Channel 7) from reporting on the Boston firefighters’ autopsy documents. After asserting that Hopkins is the first judge to exercise prior restraint against the media since the Pentagon Papers case in 1971, the editorial continues:

There is no more sacred corollary to the First Amendment than the prohibition against prior restraint — something which apparently eluded Judge Hopkins. The news media are perfectly willing to take our lumps after the fact — fines, civil suits, even getting thrown in jail for refusal to name sources. That is often the price we pay for exercising those freedoms.

I’m not sure about the Herald’s Pentagon Papers citation. At the very least, we know that a federal district-court judge in 1979 stopped the Progressive magazine from publishing an article purporting to show how to build a hydrogen bomb, even though the article was based on publicly available reference materials.

Even so, the fact that the Progressive case invoked the specter of millions of people dying serves to underscore the trivial, ludicrous nature of Hopkins’ special favor to the firefighters union. The overturning of her ill-considered order shouldn’t be the end of this. Good for the Herald for speaking out.

I would like to watch Channel 7’s Andy Hiller, who has a commentary titled “Free Speech v. Privacy Rights” on the WHDH Web site. Unfortunately, I couldn’t get it to load despite trying several different tricks on both a Mac and a Windows-based PC. Perhaps you’ll have better luck.