A few thoughts on the Deflategate decision

Tom_Brady_vs._Vikings_2014
Tom Brady in 2014. Photo (cc) by Andrew Campbell. Some rights reserved.

We’ve had a lively discussion of this on Facebook, so I thought I’d post it here as well.

My first reaction to Deflategate was that Tom Brady was responsible. I based my opinion on his refusal to defend himself beyond a few vague statements. He said nothing after the Wells Report came out. I also had no idea the commissioner’s office was so corrupt — not too strong a word.

I changed my mind after we learned that Brady had denied under oath that he had any involvement or knowledge of footballs being deflated. Not only do I have no reason to think Brady is the sort of person who’d lie under oath, but he gave that statement knowing that Lenny and Squiggy could emerge from their lair and contradict him.

I see Judge Richard Berman’s ruling as total vindication. I know he had to be careful in ruling on narrow legal grounds rather than on the facts, but the facts mattered. He asked a lot of factual questions during the hearings, and of course he was well aware of Brady’s denial. There’s also the matter of the false ESPN report — clearly a smear job by the NFL. I can’t prove this, but I believe that if Berman thought Brady was responsible, he might have knocked the suspension down to two games on procedural grounds but wouldn’t have vacated it entirely. Judges are human, and they can’t help but let the facts influence their legal rulings. (And what’s wrong with that?)

Goodell now says he’s going to appeal. Frankly, the best outcome would be if the NFL owners decided he should spend more time with his family. What a clown.

I’m not even a football fan, but I’m glad Brady won. I don’t think it’s too much of a stretch to say that Berman’s ruling legitimizes the Patriots’ championship. I never would have believed it, but the NFL really was out to get them.

As for all the media attention this has gotten, so what? I’ve heard a lot of comments along the lines of “this is so unimportant given what’s going on in the world.” Well, sports is a combination of entertainment and culture, and it’s something a lot of us follow — along with the presidential campaign and the horrors of ISIS and the refugee crisis in Europe. We all care about many different things. I’m not going to criticize anyone for caring about this. I care too.

Intimidation, free speech and Barstool Sports

Martha Coakley

(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.