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.