Tag: First Amendment

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.

Hopkins’ ruling overturned

Superior Court Judge Merita Hopkins’ chilling order prohibiting WHDH-TV (Channel 7) from airing its exclusive on the autopsy reports of two Boston firefighters has been overturned. John Ellement of the Boston Globe writes that Massachusetts Appeals Court Judge Andrew Grainger set aside Hopkins’ order with little comment, but that we can expect “a lengthier explanation” later.

I hope that explanation includes an acknowledgment that Hopkins ignored well-established First Amendment doctrine. Hopkins exercised prior restraint — censorship — in its rawest form. I also wonder, along with the Phoenix’s Adam Reilly, whether Grainger will say that Hopkins — former chief of staff and legal counsel to Mayor Tom Menino — should have recused herself from even considering the case.

Judge Hopkins’ shocking decision

Superior Court Judge Merita Hopkins issued a shocking decision yesterday. By stopping WHDH-TV (Channel 7) from reporting on autopsy reports that allegedly show two Boston firefighters killed in an August restaurant blaze had abused drugs and alcohol, Hopkins violated the most basic of First Amendment protections — the protection against prior restraint. (Boston Globe coverage here; Boston Herald coverage here and here.)

The courts — right up to and including the U.S. Supreme Court — have consistently ruled that when a confidential document ends up in the hands of the media, there’s nothing that can be done about it. The legal responsibility is on the keepers of those documents not to release them; the media, by contrast, have no legal obligation not to report on them.

There are many cases I could point to, but consider that of Jim Taricani, an investigative reporter for WJAR-TV (Channel 10) in Providence. A few years ago Taricani broadcast videotapes of an aide to then-mayor Buddy Cianci taking a bribe. The tapes had been sealed by a federal judge, Ernest Torres, and thus it was illegal for anyone to give those tapes to Taricani — a perfect analogy to the situation involving the autopsy reports yesterday.

Taricani was in big trouble with Torres — but not for broadcasting the material. That, the judge made clear, was absolutely protected by the First Amendment. Instead, Torres insisted that Taricani reveal his source, because it was that person, not Taricani, who had violated the law. Taricani refused, and was sentenced to home detention. (The source, later revealed to be defense lawyer Joseph Bevilacqua Jr., was punished as well.)

It could very well be that the journalists who revealed the contents of the autopsy reports in the matter of the Boston firefighters will be pressured to give up their sources as well. Those of us who champion a free press ought to be concerned about that, but at least it’s well-established legal terrain.

Judge Hopkins, on the other hand, ought to be sent to her corner and forced to repeat 50 times: “Congress shall make no law … abridging the freedom of speech, or of the press.”

More: Here’s the text of Near v. Minnesota, the 1931 decision by the U.S. Supreme Court in which prior restraint was deemed a violation of the Constitution in almost all instances. The exceptions — national security, obscenity and incitement — are narrowly drawn, and obviously do not come within a mile of the Boston case.

A victory for free speech

Tufts University president Lawrence Bacow deserves a lot of credit. Earlier this week, he issued a ringing endorsement of freedom of speech on campus by reversing the punishment that had been handed out to a conservative student publication by a faculty-student committee.

According to the Boston Globe, Bacow overturned a decision that required editors of The Primary Source to put bylines on all articles and editorials. Unfortunately, he left in place a ruling that the publication had engaged in “harassment” and “creating a hostile environment” by running racially insensitive materials. But that’s symbolic. Anonymous speech, on the other hand, is a crucial right.

I wrote about the Tufts case in the Phoenix’s “10th Annual Muzzle Awards” earlier this summer, picking up on previous work by Harvey Silverglate and Jan Wolfe. There’s no question that The Primary Source’s sins against political correctness — which began with the editors’ publishing a mock Christmas carol called “O Come All Ye Black Folk” — were demeaning and sophomoric. But so what?

As the Tufts Daily editorialized at the time:

[H]olding others accountable must not mean threats, either implicit or explicit, of censorship; it must not mean tying funds to “behavior”; it must not mean dictating the style, format or attribution of content. The freedoms we treasure are most honored when we hold others accountable through words of our own, through debate and through the preservation of an open forum for ideas — even ideas we find objectionable.

Offended students were free to ignore The Primary Source, organize a protest or start their own publication. What they should not have done was haul the editors before a disciplinary committee, hector them and approve official sanctions against them. Bacow, at least, recognizes that.

Update: Silverglate and Wolfe praise Bacow for reversing the “no anonymity” provision, but criticize him for allowing the “harassment” finding to stand. They write: “An ominous sword of Damocles still hangs over the head of any Tufts student who wishes to make a social or political point by making fun of someone. Colleges need to learn that poking fun at a sacred cow doesn’t always mean the poor animal’s being harassed.”

Robert Dushman

Robert Ambrogi’s Media Law blog passes along word that First Amendment lawyer Robert Dushman has died of lung cancer. Dushman, just 59 years old, was considered one of the country’s leading media lawyers, according to this obituary (PDF) from the New England Press Association.

Dushman represented the Boston Herald in the libel case brought by Superior Court Judge Ernest Murphy. The two most impressive people in the courtroom during the 2005 trial were the lead lawyers, Dushman and Howard Cooper, who represented Murphy. Dushman had the harder task — a tough case and an unsympathetic client.

Judge Murphy’s latest money grab

Is there no end to Superior Court Judge Ernest Murphy’s greed? Apparently not. Murphy is now suing the Boston Herald’s insurance company for $6.8 million merely because it allowed the paper to defend itself against the judge’s libel suit, and then allowed an appeal of the jury’s $2 million-plus verdict (Globe story here; Herald story here). Absolutely incredible.

Murphy had already managed to squander nearly all of the goodwill he’d garnered as a victim of the Herald’s sensationalistic, flawed reporting about him — first by sending bizarre, threatening letters to publisher Pat Purcell, and then, more recently, by trying to grab a disability pension to which Gov. Deval Patrick rightly concluded he wasn’t entitled. Now this.

When this all started a few years ago, I was sympathetic to Murphy, though not to his lawsuit. As a public official, he had the platform he needed to speak out and defend himself against charges he believed were unfair and inaccurate. No need to turn it into a libel case.

Unless, that is, he saw this as a chance to cash in right from the beginning.

Patrick to Murphy: Uh, no

There’s really nothing left to say about the saga of Middlesex Superior Court Judge Ernest Murphy, other than good for Gov. Deval Patrick for refusing to approve Murphy’s request for a disability pension.

I don’t consider myself a Murphy-basher. I don’t doubt that he suffered terribly at the hands of the Herald’s sensationalistic coverage of him — although Media Nation readers know I disagree with the libel verdict that he won, and that the state’s Supreme Judicial Court upheld.

But surely the $3.41 million he pocketed recently, along with the regular pension he could receive by working for just three more years is enough — provided he doesn’t get bounced for alleged misconduct over those weird letters he sent to Herald publisher Pat Purcell.

A bad day for Judge Murphy

It looks like Superior Court Judge Ernest Murphy could be a big loser despite winning a $2 million-plus libel judgment against the Herald — a judgment that was reaffirmed this spring by the state’s Supreme Judicial Court.

The Associated Press reports that the state’s Commission on Judicial Conduct has filed charges with the SJC alleging that Murphy’s very odd and threatening post-verdict letters to Herald publisher Pat Purcell — written on Superior Court letterhead — amounted to “willful misconduct” that brought his office into “disrepute.”

Murphy, in his response, denies the misconduct charge.

It’s all online here (PDF).

The 10th annual Muzzle Awards

It seems hard to believe, but today is the 10th anniversary of the Phoenix Muzzle Awards. In 1998, at the suggestion of Harvey Silverglate, I began compiling an annual Fourth of July roundup of outrages against free speech and civil liberties in New England.

This year, for the second year in a row, Mitt Romney leads the pack. This time it’s for refusing to provide security last September at a Harvard speech by former Iranian president Mohammad Khatami — a routine matter, but the then-governor decided to make a grandstanding play instead. If the Boston Police Department had not stepped forward so that Khatami could deliver his address, Romney would have handed the reformist Khatami’s enemies back home a considerable victory.

There’s also some breaking Muzzle news. In the last item, I single out Boston England High School headmaster Jose Duarte for placing longtime substitute teacher Jeffrey Herman on a “do not call” list — retaliation, according to Herman, for Herman’s speaking out against the city’s $1.2 million Junior ROTC program. Just yesterday, the ACLU of Massachusetts announced (PDF) that the city would pay a $15,000 settlement to Herman without admitting any wrongdoing on Duarte’s part.

A controversy over a 2006 Muzzle was recently resolved as well. Last year I criticized the Massachusetts State Police for threatening a Leominster political activist named Mary T. Jean for posting on the Web a streaming video of a man being arrested in his home. The video — captured by a “baby cam” in the arrestee’s home — had been posted with his permission, but the state-police troopers somehow saw it as a violation of their rights.

On June 22, the U.S. Court of Appeals for the First Circuit ruled in favor of Jean. As media lawyer Robert Ambrogi reported on his blog:

The court ruled that the First Amendment prevents law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, even though the individual had reason to know the recording was made illegally.

The principle here is particularly important, because Jean used her Web site to criticize then-Worcester County district attorney John Conte, and because she claimed the video showed troopers assigned to Conte’s office making a warrantless arrest. This is political speech, pure and simple, and thus deserving of the highest level of First Amendment protection.

Photo of Romney (cc) by MyTwistedLens. Some rights served.