Wednesday, December 26, 2007

Our Podcast Named Best Legal Podcast

I am honored to report that Lawyer2Lawyer, the weekly legal-affairs podcast I cohost with J. Craig Williams, is the winner for the second year in a row of Dennis Kennedy's Best of Law-related Blogging Award for Best Legal Podcast. Dennis writes:
"This regular weekly podcast of interviews and panel discussions has a new name for 2007, but is once again the clear choice as best legal podcast. The ability to produce a consistent weekly show with great topics and guests helps this podcast move to the top of the list. I'm consistently impressed by the way Bob Ambrogi and Craig Williams put together shows on the leading stories of the day. If you want to learn about how to do a good legal podcast, you can go to school on this one. And it's fun to be a guest on this podcast."
Kennedy's honorable mention in this category goes to Denise Howell's always superb This Week in Law.

The award is all the more special in that it comes from someone who hosts his own well-done podcast, The Kennedy-Mighell Report, together with Tom Mighell. Congratulations to Craig Williams and our producers and show hosts at the Legal Talk Network. Congratulations, as well, to the other Blawggies winners.

Wednesday, December 05, 2007

Podcast: The Tavares Case

A Massachusetts' judge's release of Daniel Tavares become part of the national political debate after Tavares allegedly shot and killed a newlywed couple in Washington state and Republican presidential hopeful and former Bay State Gov. Mitt Romney called on the judge -- his own appointee -- to resign. On the legal-affairs podcast Lawyer2Lawyer this week, we dissect the debate with two guests: lawyer and radio host Dan Rea, host of WBZ Radio's NightSide with Dan Rea, and David Frank, attorney and reporter with Massachusetts Lawyers Weekly. Listen to or download the show from this page.

Tuesday, November 20, 2007

Podcast: Vioxx Lawyers Discuss Settlement

On Nov. 9, Merck & Co., after long insisting it would never settle the 27,000 Vioxx cases filed against it, turned an about face and agreed to a global settlement in which it will pay $4.85 billion to resolve the bulk of these cases. Two of the lawyers who were instrumental in bringing this about join us to discuss the settlement on the latest episode of the legal-affairs podcast Lawyer2Lawyer. My cohost J. Craig Williams and I discuss the terms of the settlement and its implications with:
We invited representatives of Merck and also of the Defense Research Institute to appear on the program, but they declined.

Listen to or download the show from this page. Subscribe to future episodes of Lawyer2Lawyer usings its RSS feed or subscribe via iTunes.

Sunday, November 18, 2007

Podcast: The RIAA vs. File Sharers

This week on the legal affairs podcast Lawyer2Lawyer, we discuss the ongoing litigation by the Recording Industry Association of America against college students, soccer moms and others accused of illegally sharing and downloading music. Our guests for this program are two experts on the issue:
We discuss the state of these cases in the wake of the $222,000 verdict in the RIAA's case against Jammie Thomas and also consider alternatives to litigation, including the EFF's proposal for a different system of music licensing.

Listen to or download the program from this page.

Monday, November 12, 2007

MNPA Annual Meeting Set for Nov. 29

The annual meeting of the Massachusetts Newspaper Publishers Association is scheduled for Nov. 29, 2007, at Anthony's Pier Four in Boston. This year's featured luncheon speaker is Margaret H. Marshall, chief justice of the Supreme Judicial Court, who will speak on courts and the news media and take questions from the audience. A morning panel will focus on legislative proposals to reform the Massachusetts open meeting law. Panelists will include Robert J. Ambrogi, Esq., MNPA executive director; Robert W. Ritchie, Esq., head of the Attorney General's Municipal Division; and Thomas J. Urbelis, Esq., past president of the City Solicitors and Town Counsel Association.

The day begins with an MNPA business meeting at 10 a.m. The open meeting panel is at 11 a.m. At noon is a cocktail reception, followed by the luncheon at 12:30. Tickets are $60. Reservations may be made using this form.

Friday, November 09, 2007

Presentation on Russian Courts and Media

After my trip to Russia last May, I gave a presentation in Boston on Russian courts and the news media. I have now converted that presentation to Flash and posted it here, should anyone be interested in viewing it.

Wednesday, November 07, 2007

Database Tracks Threats to Citizen Journalists

The Citizen Media Law Project today launched its Legal Threats Database, a collection that documents legal threats aimed at online speech, including lawsuits, cease-and-desist letters and other legal actions. I have further details at my LawSites blog.

Podcast: Pam Smart Case Back in the News

The 1991 first-degree murder trial of New Hampshire teacher Pam Smart drew international media attention and spawned the Joyce Maynard novel and Nicole Kidman movie, To Die For. Smart was accusing of luring her 16-year-old lover, William Flynn, and two of his friends into murdering her husband Gregory. Smart was convicted and sentenced to life in prison without parole. Flynn plead guilty to second-degree murder and received a 40-year prison sentence. Now, the 33-year-old Flynn, who will be eligible for parole in 2018, is asking a New Hampshire judge to reduce his sentence and open the door to his earlier release.

On this week's legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I discuss the legal and social implications of Flynn's request. Joining us as guests to discuss the case are Marsha V. Kazarosian, the Massachusetts lawyer who defended Vance Lattime Jr., the teen who drove the getaway car on the night of the murder, and Allan H. Stokke, noted California criminal defense attorney. Download or listen to the program at this page.

Friday, October 19, 2007

SJC Upholds Child Porn Law

The Massachusetts Supreme Judicial Court today issued a decision, Commonwealth v. Kenney, upholding the First Amendment constitutionality of the state law that makes it a crime to possess child pornography. The court rejected the defendant's contentions that the statute violates the First Amendment because it is vague and overbroad.

With regard to overbreadth, the defendant argued that the statute would apply to films with artistic merit, citing as an example Hounddog, a film recently released at the Sundance Film Festival that depicts the rape of 12-year-old girl. The SJC answered that argument by saying that it does not invalidate the statute and that claims of artistic merit would have to be evaluated on a case-by-case basis.

The defendant also argued that the statute is unconstitutional because it contains an impermissible scienter requirement insofar as it applies to situations in which a defendant "knows or reasonably should know" that the person is under age 18. The SJC replied that, if a defendant disputes actual or constructive knowledge of a child's age, the state meets its burden of proof by showing that the physical disparity between the subject and a person who is 18 is such that it would be obvious, beyond a reasonable doubt, to a reasonable person.

Tuesday, October 16, 2007

House Passes Media Shield Bill

AP is reporting that the House today passed the media shield bill. The White House has threatened to veto it.

Could the SJC Remove Judge Murphy?

After the Commission on Judicial Conduct concludes this week's hearing into Judge Ernest Murphy's letters to Boston Herald Publisher Patrick Purcell, it will decide whether to recommend that he be disciplined. The CJC cannot impose discipline itself; it sends a recommendation to the Supreme Judicial Court, which is free to accept, reject or modify the recommendation. Discipline can range from a reprimand to a fine to something more severe. But, judging by media reports, one uncertain issue is whether the SJC could remove Judge Murphy from the bench.

Last night on Greater Boston, David Yas, the editor of Massachusetts Lawyers Weekly, said that one sanction the commission could recommend would be removal. In today's Boston Herald, Jessica Van Sack writes that the SJC could impose "early retirement" but that "only the Legislature can remove a sitting judge."

Under our state constitution, judges have tenure to age 70. By the express terms of the constitution, it would appear that judges could be removed from office only by the governor with the consent of the Governor's Council and both houses of the legislature or through impeachment by both houses of the legislature. Nowhere does the constitution expressly authorize the SJC to remove a judge.

The question is further muddied by the CJC's authorizing statute, which lists both "removal" and "retirement" as among the sanctions it can recommend to the SJC. The CJC's FAQ lists retirement as an appropriate sanction but not removal.

So the question is: Without express authority in the constitution, can the SJC nevertheless remove a judge from office? While the constitution would seem to reserve this power to the governor and the legislature, the SJC sees it differently. In 1973, after reviewing extensive misconduct charges against Dorchester Municipal Court Judge Jerome P. Troy, the SJC ordered his removal from office. But it did so without ever directly calling it a removal. Instead, it issued an order that he was "enjoined from the exercise of all duties and powers as a judge." In the Matter of Troy, 364 Mass. 15 (1973). It based its authority to do that not on the express words of the constitution, but on "the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice." In the Matter of DeSaulnier, 360 Mass. 757, 759 (1971).

In years since, the SJC has not removed another judge, but it has used that same authority to reassign judges, suspend judges and dock their pay. Could, then, the SJC remove Judge Murphy from the bench? Apparently so, although it is unlikely that the high court would find his actions sufficiently severe to warrant that most extreme sanction. More likely is that this matter will be resolved before it ever reaches the SJC.

Wednesday, October 10, 2007

Podcast: Chemerinsky, Drake Discuss New Irvine Law School

Break out the bubbly! It is the second anniversary (give or take a month) of our weekly legal-affairs podcast Lawyer2Lawyer. We posted our first program on Aug. 31, 2005, with two special guests, then newly installed ABA President Michael S. Greco and Duke Law Professor Erwin Chemerinsky.

Chemerinsky, of course, has been in the news of late as the dean-designate of the new Donald Bren School of Law at UC Irvine, which will welcome its first class of students in fall 2009. UC Irvine Chancellor Michael V. Drake caused a controversy for his on-again, off-again hiring of Chemerinsky, but with that behind them, both are now focused on building and launching the school.

Chemerinsky and Drake join us as our guests this week for our special second-anniversary Lawyer2Lawyer. Both talk about their plans for the school and the preparations already underway. I also ask Chemerinsky for his views on Justice Clarence Thomas.

You can listen to or download the program from this page.

Let me take this opportunity to thank the many people worldwide who listen to our program every week. Let me also thanks my cohost J. Craig Williams for collaborating with me on this and a huge thanks to everyone at the Legal Talk Network for the technical and professional support and guidance they've put into this.

Tuesday, October 09, 2007

Text of Ruling in WHDH Prior Restraint Case

[A Massachusetts Appeals Court judge last week lifted an injunction that blocked a Boston TV station from reporting the results of an explosive autopsy report showing that one Boston firefighter killed in the line of duty was intoxicated and another had traces of cocaine in his blood. I posted earlier about this at's Legal Blog Watch. I have not seen the full text of this ruling posted elsewhere online, so here it is.]

A.C. 2007-J-455



The matter came before the single justice on the petition of the defendant, WHDH TV, Channel 7 (channel 7), pursuant to G.L. c. 231, s. 118 (first par.), seeking interlocutory relief from an order of a Superior Court judge that enjoined the defendant "from the release and/or use of autopsy reports, or the contents of autopsy reports, from the medical examiner's office regarding Paul J. Cahill and Warren J. Payne." In reviewing the entry of a preliminary injunction, a single justice of an appellate court is to focus upon "whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of the factual questions." Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 642 (1987). A trial court's legal conclusions, however, are subject to broad review and in those cases, the single justice may apply the de novo standard of review if the preliminary injunction order was predicated solely on documentary evidence. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980); Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412, n.4 (1996). Here, I apply the de novo standard of review and conclude that the preliminary injunction was not justified under any criteria which override the heavy presumption against prior restraint on free speech.

Background. The facts are undisputed. On August 29, 2007, two Boston firefighters died in a fire at a West Roxbury restaurant. At some point early in the day on October 3, 2007, the president of Boston Firefighters Union, IAFF Local 718 (the "union" or "plaintiff"), (fn. 1) learned that channel 7 was in possession of information relating to autopsy reports of the deceased firefighters, which it intended to release. The union subsequently filed a complaint for declaratory judgment and injunctive relief and obtained an ex parte temporary restraining order against channel 7, which it served upon channel 7 at 1 p.m. that day. After a hearing at 2 p.m. that day, a judge of the Superior Court granted the union's request for an injunction and, as stated above, enjoined channel 7 from releasing or using the autopsy reports or their contents. Subsequent to that hearing, several other news outlets released the same information that the Superior Court had enjoined channel 7 from releasing. (fn. 2)

Discussion. Prior restraint on the exercise of rights under the First Amendment and Article 16 of the Declaration of Rights. Although generally courts consider constitutional questions only if necessary to the resolution of a case, we may exercise our judicial discretion to consider such questions in limited circumstances. See Commonwealth v. Welch, 444 Mass. 80, 93 (2005) (citations omitted). There are several factors here that motivate us to address the constitutionality of the preliminary injunction order. First, the parties have fully briefed the issue. Id. Further, and more importantly, the statute and regulations, as applied by the judge, implicate "important concerns of free speech and future application of this statute will likely give rise to challenges concerning its scope." id.

As the judge noted in her order, the injunction is without doubt a prior restraint on speech. I must therefore decide whether such prior restraint is justified under the high standards of the federal and state constitution. "It is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication." Near v. Minnesota ex rel Olson, 283 U.S. 697, 713 (1931). As the Supreme Judicial Court has stated, "Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm." Care and Protection of Edith, 421 Mass. 703, 705 (1996). "A general rule" barring publication of information is not sufficient to meet that requirement; rather, "[t]here must be evidence and findings as to what effect the disclosure" will have. Id. at 706. Further, "[a]ny prior restraint on expression comes to [the court] with a heavy presumption against its constitutional validity." Organization For Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (internal quotations omitted). In this case, the plaintiff has not overcome that heavy presumption.

While "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally," Branzburg v. Hayes, 408 U.S. 665, 684 (1972), 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. For this reason, Globe Newspaper Co. v. Chief Med. Examr., 404 Mass. 132, 135-136 (1989), relied upon by the plaintiff, is unavailing, holding as it does that public policies favoring confidentiality make autopsy reports exempt from disclosure as public records under G.L. c. 4, s. 7, Twenty-sixth (c). 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. See New York Times v. United States, 403 U.S. 713 (1971). (fn. 3) As the Supreme Court has noted, "[a] prior restraint … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1974).

In this context, I examine whether the preliminary injunction granted below is "based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." Care and Protection of Edith, supra, at 705. I conclude that the plaintiff did not, and no longer can, "identify a compelling interest that the restraint will serve." Id. It is undisputed that no other party was made subject to the injunction, and that there has been wide dissemination of the autopsy results in the past twenty-four hours. The plaintiff argues that preventing the emotional distress which will result from continued press coverage (contrasted with the initial public disclosure it first sought to prevent) now constitutes the compelling interest which they must supply. I do not minimize the considerable personal grief that has resulted from rumor and adverse publicity aggravating the vulnerability of bereavement. Even were I to conclude, however, that this is an interest which is recognized by the law as justifying a limitation on free speech, the plaintiffs have not sustained their burden to demonstrate that such an interest is furthered by preventing one additional television station from broadcasting information that all other stations, newspapers, radios and on-line media have disseminated and continue to disseminate. (fn. 4)

For the foregoing reasons, the order of the Superior Court dated October 3, 2007, on docket number SUCV 2007-04341, which granted the plaintiff's request for a preliminary injunction is vacated and the preliminary injunction enjoining channel 7 from broadcasting information relative to the autopsy reports is dissolved.

By the Court (Grainger, J.)
Entered: October 5, 2007


1. The Superior Court judge apparently accepted the representation that the union represented Ann Cahill as surviving spouse of firefighter Paul J. Cahill, and Florence Payne as mother and next of kin of firefighter Warren J. Payne. The plaintiff's counsel also represented at oral argument that the complaint will soon be amended to add Ann Cahill and' Florence Payne as plaintiffs. For ease of reference I refer to the plaintiff in the singular (reflecting its present status) but accept the representation concerning next of kin where pertinent to the issues.

2. Counsel to channel 7 represented to this Court that he was not aware of any additional information in the possession of channel 7 about the autopsies other than that which has already been published.

3. The plaintiffs argue to the contrary, relying on Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 290 n.9 (1999) for the proposition that illegal acquisition of information creates an exception to the presumption against prior restraint. However, Peckham refers to the possibility of subjecting a media outlet to punishment after publication, not a ban on publishing the information itself.

4. Although we do not need to reach the three prong preliminary injunction test set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980), we note that the lack of compelling interest in the prior restraint context translates into a lack of irreparable harm in the injunction analysis. Further, even disregarding the constitutional defect here, success on the merits is improbable rather than probable in view of the plaintiff's questionable standing and the fact that the statute is directed at the Chief Medical Examiner's authority to control the release of information rather than the consequences to third parties o f his failure to do so. Finally, a balancing of harms is impacted by the defendant's potential status as the sole news outlet prohibited from carrying a story. In short, the plaintiff would not appear to be entitled to the injunction even if it could overcome the problem of prior restraint.

Sunday, October 07, 2007

What Powell Meant to Say in Branzburg

In A Justice's Scribbles on Journalists' Rights, New York Times reporter Adam Liptak sheds light on what Justice Lewis F. Powell Jr. meant to say in Branzburg v. Hayes, that most cryptic of cases dealing with journalists' right to protect confidential sources.

Wednesday, September 26, 2007

Libel Win Pit Newspaper Against Newspaper

Always good news when a newspaper beats a libel lawsuit, but in an ironic twist to a Texas case decided last week, the victorious newspaper was defending itself against a plaintiff that was also a newspaper. As Tex Parte Blog reports, the Sept. 20 ruling from the state's 8th Court of Appeals was a victory for Belo Corp., publisher of The Dallas Morning News. The suit had been brought by the Mexican company Publicaciones Paso Del Norte, publisher of El Diario, after the Dallas paper ran an article suggesting that the Mexican paper may have soft-peddled its reporting of the murders of some 400 women in Juarez, Mexico. The appeals court concluded that there was "less than a scintilla of evidence to create a genuine issue of material fact concerning actual malice" and entered summary judgment dismissing the case.

Justice Giveth; Justice Taketh Away

Adjacent news items from the Web site of The Coalition of Journalists for Open Government offer in ironic illustration of public-access hypocrisy by the U.S. Justice Department. First comes the good news: The Justice Department has directed all federal departments and agencies that have an FOIA backlog to post a plan by Nov. 1 for reducing the backlog over the next three years. Here is the DOJ memo.

But no sooner does DOJ tell other federal entities to come up with plans for improving public access than it takes steps to cut off public access. CJOG points to Marcia Coyle's Sept. 17 report in the National Law Journal that DOJ has asked the federal judiciary to eliminate public Internet access to plea agreements in criminal case files and all related docket notations. Presently, these are available through the judiciary's PACER system.

The judiciary is seeking public comment on DOJ's request. Comments must be filed by Oct. 26. If you oppose further restrictions on public access to government information, make your voice heard by filing a comment.

Friday, September 21, 2007

NYT: A Shield for the Public

Yesterday's New York Times editorial, A Shield for the Public, puts the emphasis where it should be in supporting the federal shield bill. The key point is that a shield bill is not needed to protect journalists, it is needed to protect the public's right to know. If sources cannot be assured of confidentiality, they will not come forward to reveal wrongdoing in government and business. Here is how the Times puts it:
"For freedom of the press to be more than a promise and for the public to be kept informed about the doings of its government, especially the doings that the government does not want known, reporters must be able to pursue the news wherever it takes them. One of the most valuable tools they have is the ability to protect the names of confidential sources — people who provide vital information at the risk of their jobs, their careers and sometimes even their lives."

Podcast: Toy Safety, the View from China

The label "Made in China" is under a lot of scrutiny as of late. On the legal-affairs podcast Lawyer2Lawyer this week, we talk to two experts resident in China for their perspective on how governments and manufacturers can help ensure toy and product safety. Joining us as guests for this program are:
  • Peter Dean, a professor of product and toy design in the School of Design at Hong Kong Polytechnic University and a former U.S. toy industry executive.
  • Arthur Kroeber, managing director and head of research at Dragonomics in Beijing, who is also a regular contributor to the opinion page of the Financial Times.
Listen to or download the full program at this page.

Thursday, September 13, 2007

Podcast: Human Rights Lawyers

Lawyers who devote substantial time to promoting international human rights are our focus this week on the legal-affairs podcast Lawyer2Lawyer. Joining my cohost J. Craig Williams and me to discuss their work in this field are:
  • Jerome J. Shestack, the former ABA president (1997-98)who is now of counsel to Wolf, Block, Schorr & Solis-Cohen in Philadelphia. Shestack's distinguished career includes having been U.S. ambassador to the U.N. Commission on Human Rights under President Jimmy Carter, president of the International League for Human Rights, founder of the Lawyers Committee for Human Rights (now Human Rights First) and general counsel to Amnesty International in the United States.
Listen to or download this week's program from this page.

Tuesday, August 28, 2007

Sad Footnote to Murphy Libel Case

I just learned that Bob Dushman, the highly regarded Boston media lawyer who defended the Boston Herald at trial in the Judge Ernest Murphy libel case, died July 27 at the age of 59. Bob was a partner with Brown Rudnick and had represented the Herald for more than two decades. The Stanford Law graduate died of lung cancer. He will be missed.

Here are obituaries from the Herald and the New England Press Association.

Monday, August 27, 2007

California Finds Right to Know Salaries

California's Supreme Court issued two important cases today involving the public's right to know. In one, International Federation of Professional and Technical Engineers v. The Superior Court of Alameda County, the court held that the public has the right to obtain the names and salaries of public employees earning $100,000 or more a year. In the other, Commission on Peace Officer Standards and Training v. The Superior Court of Sacramento County, the court required the Commission on Peace Officer Standards and Training to disclose the names, employing departments and hiring and termination dates of California peace officers.

Both cases grew out of requests by newspapers to obtain the records. The salary case involved a request by reporters at Contra Costa Newspapers that Oakland city officials provide them with the names, job titles and gross salaries of city employees who earned $100,000 or more. The city agreed to provide the information by job classification but refused to link it to employees by name. The issue before the court was whether the information was exempt from disclosure under a statutory public-records exemption for "personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." Concluding that the exemption does not apply to salary information, the court cited "the strong public policy supporting transparency in government."

In the peace officer case, a Los Angeles Times reporter requested records held in an electronic database maintained by the peace-officer commission. Specifically, the reporter asked for 10 years' data on new appointments, including names, employing department, appointment dates, termination dates and reasons for termination. In denying the request, the commission relied on a penal code provision that makes peace-officer personnel records confidential. But the court found that the provision applies only to types of information expressly listed in the statute, such as medical histories and disciplinary records, but not to the information requested by the reporter.

Thursday, August 23, 2007

Podcast: Baseball and the Law

Steroid scandals, home-run balls, libel lawsuits -- baseball is becoming a hotbed of legal activity. This week on the legal-affairs podcast Lawyer 2 Lawyer, my cohost J. Craig Williams and I discuss the legal issues emerging in the wake of Barry Bonds' new home-run record, from what Major League Baseball should do about steroids to who rightly owns the home-run ball. Joining us are two of the world's leading experts on baseball and the law, Professor Paul Finkelman from Albany Law School in Albany, N.Y., and Professor Howard Wasserman, visiting asssociate professor at St. Louis University School of Law and associate professor at the Florida International University School of Law, who is also a contributor to Sports Law Blog.

Listen to or download the program from this page.

Monday, July 30, 2007

Podcast: YouTube and Legal Marketing

This week on the legal-affairs podcast Lawyer2Lawyer, we look at YouTube as a legal marketing tool. Joining my cohost J. Craig Williams and me to discuss this are our guests:
Listen to the show or download it from this page.

Wednesday, July 11, 2007

Podcast: Avvo's Founders Respond

In today's edition of the legal-affairs podcast Lawyer2Lawyer, we interview the founders of the controversial lawyer rating site Avvo, President and CEO Mark Britton and VP of Products & Marketing Paul Bloom. The two discuss their reasons for founding the site, their responses to criticisms and their future plans. They also respond to points made during our first program on Avvo, posted June 18, on which they declined to appear.

Listen to or download today's program at this page.

Friday, June 22, 2007

First Amendment Protects Posting of Unlawful Video

An important decision of First Amendment and Internet law came down today from the 1st U.S. Circuit Court of Appeals: Jean v. Massachusetts State Police. 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 case involves Mary T. Jean, a Worcester political activist who maintained a Web site critical of former Worcester District Attorney John Conte. In October 2005, Paul Pechonis contacted Jean through her Web site. He said that on Sept. 29, eight armed State Police troopers arrested him in his home on a misdemeanor charge. After handcuffing him at his front door, the officers conducted a warrantless search of his entire house. A motion-activated "nanny cam" caught the incident on tape. Pechonis gave a copy of the tape to Jean, who posted it on her Web site.

After State Police officers learned of the posting, they wrote to Jean telling her that her posting of the tape was illegal. They gave her 48 hours to take it down or face prosecution. A month later, the police "clarified" the previous letter to demand that she take down only the audio portion of the recording.

Citing the First Amendment, Jean went to federal court seeking a TRO and an injunction against the police and the attorney general. The district court granted the TRO and, after a hearing, entered a preliminary injunction. The police appealed.

In today's decision, the 1st Circuit affirmed the district court, relying on Bartnicki v. Vopper, 532 U.S. 514 (2001), a case in which the Supreme Court found that the First Amendment protected the replaying of an intercepted cell phone conversation concerning a matter of unquestionable public concern, when, although the interception was unlawful, the possessor of the tape obtained it lawfully. That precedent controlled here, the circuit court said:
"We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection."

Tuesday, June 19, 2007

Committee Signals Support for Open Meeting Reform

The Massachusetts legislature's Joint Committee on State Administration and Regulatory Oversight today held a hearing on a number of open government bills and both the Senate and House chairs of the committee indicated support for measures that would add "teeth" to the law. In my capacity as executive director of the Massachusetts Newspaper Publishers Association, I testified in support of House Bill 3217, an MNPA-drafted bill that would allow fines against individual board members who violate the law and allow recovery of attorneys' fees by private citizens who bring actions to enforce the law. MNPA President Larry McDermott, publisher of The Republican in Springfield, and media lawyer Peter Caruso also testified in favor of the bill. We also expressed support for House Bill 3171, a more comprehensive open meeting reform bill filed by Rep. Antonio F.D. Cabral (D-New Bedford), the committee's House chair.

In comments during the hearing, both Rep. Cabral and Sen. Dianne Wilkerson (D-Boston), the Senate chair, indicated their support for strengthening the enforcement provisions of the open meeting law. When an opponent of the bill testified that officials who violate the open meeting law do so innocently, Sen. Wilkerson responded that her experience suggested otherwise. She has served on numerous boards and commissions, she said, and has seen them "skate close to the edge a lot." Both Sen. Wilkerson and Rep. Cabral appeared to agree that adding penalties and attorneys' fees is necessary in order to enforce the law.

Monday, June 18, 2007

Podcast: Lawyer Rating Site Stirs Controversy

This week on the legal affairs podcast Lawyer2Lawyer, we speak with attorney John Henry Browne, a lead plaintiff in the lawsuit against the new lawyer rating service Avvo. Also joining us to discuss the legal and professional issues surrounding Avvo are bloggers Denise Howell and Carolyn Elefant.

We invited Avvo CEO Mark Britton or any other company representative to be on the show, but they declined.

Listen to or download the show from this page.

Thursday, June 14, 2007

Legislative Panel Debates Mass. Shield Law

One fact seemed clear after Tuesday's hearing on a proposed Massachusetts shield law -- the bill is unlikely to pass in its present form. That is bad news for the media coalition pushing for the law (of which I am part), because the bill as filed would be one of the strongest shield laws in the nation. But just how bad the news might be would depend on just how much its language would be compromised. The ultimate question could end up becoming: Is a weak shield law better than no shield law at all?

In his piece for The Republican, reporter Dan Ring does a good job capturing what happened at the hearing before the Joint Committee on the Judiciary. The committee's House co-chair, Rep. Eugene L. O'Flaherty, came to the hearing having clearly done his research on shield laws generally. He made clear that he has a number of concerns with the bill, among them its potential for protecting individuals who reveal trade secrets. The Senate co-chair, Sen. Robert S. Creedon, expressed concern over the bill's coverage of bloggers, who he referred to as "the loosest of loose cannons." But Creedon also expressed respect for and appreciation of the role of the news media and seemed willing to see a shield law go through in modified form.

Seven witnesses testified with barely a question from the committee: Blue Cross Blue Shield Executive Vice President Peter Meade; journalists Jim Taricani, Susan Wornick and Natalie Jacobson; Boston Globe Senior Vice President Al Larkin; NECN Vice President of News Charles Kravetz; and WBUR General Manager Paul La Camera. Then three witnesses came up as a panel: Reporters Committee for Freedom of the Press Executive Director Lucy Dalglish, Boston College Law Professor Mary-Rose Papandrea and Pulitzer Prize winner Alex Jones, director of Harvard's Shorenstein Center on the Press, Politics and Public Policy. At that point, O'Flaherty began to question them intensely about various aspects of the bill. The "jousting" (as Ring called it) continued for some time, even after Jones had to leave for an appointment elsewhere. The State House News Service described it this way:
"What began Tuesday morning as a series of pleas from news executives and experts before a seemingly incurious Judiciary Committee to protect journalists from revealing confidential sources, quickly escalated into a tug of war with the committee's chairman - a lawyer - over how best to balance freedom of the press with the judicial branch's right to demand information."
Dalglish, of course, knows this issue inside out and is a veteran of speaking about it in Congress and other state legislatures. Papandrea recently published a law review article on the reporter's privilege and is likewise thoroughly well versed in the law. Their expertise only underscored how well prepared O'Flaherty was -- his questions and comebacks showed that he'd done his homework.

O'Flaherty never said he opposed the bill outright. Some attendees conjectured that he would not have prepared so thoroughly if he thought the bill would go nowhere. And Dalglish suggested that many of his concerns could be addressed through modifications to the bill. It remains to be seen what those modifications might be and whether the bill, even if it makes it out of this committee, will ultimately become law.

Two other reports:

Monday, June 11, 2007

Mass. Shield Bill Gets Hearing Tomorrow

A Massachusetts bill to shield journalists' confidential sources gets a hearing tomorrow before the state legislature's Joint Committee on the Judiciary. The bill, House 1672, will be heard Tuesday, June 12 at 10 a.m. in Room B-1 of the State House.

The bill would protect sources and reporting materials from forced disclosed by reporters, editors, and media outlets under subpoena from the courts or administrative agencies in Massachusetts. It strengthens the public’s right to know about situations that could affect their finances, families and even their lives.

Among those slated to testify in support of the bill are journalists Jim Taricani, Susan Wornick and Natalie Jacobson; Boston Globe Senior Vice President Al Larkin; NECN Vice President of News Charles Kravetz; WBUR General Manager Paul La Camera; Reporters Committee for Freedom of the Press Executive Director Lucy Dalglish; Boston College Law Professor Mary-Rose Papandrea; media lawyers Jonathan Albano and Jeffrey Newman; Peter Meade, executive VP of Blue Cross Blue Shield of Massachusetts; and Alex Jones, director of Harvard's Shorenstein Center on the Press, Politics and Public Policy.

Thursday, May 24, 2007

Podcast: Lawyers Who Defend Celebrities

This week on the legal-affairs podcast Lawyer2Lawyer, we talk to the lawyers who defend high-profile celebrities in criminal cases. Why is the public so fascinated with stars in legal trouble? What challenges do lawyers face in representing a high-profile client? Can celebrities ever get a fair trial?

Joining cohost J. Craig Williams and me to share their insights and experiences are Tom Mesereau, partner with the Los Angeles firm Mesereau & Yu, who has defended Michael Jackson and Robert Blake, among others, and Jennifer Keller, a Southern California criminal defense attorney who also represented Robert Blake, among other celebrities.

Read more about the program and download or listen to it at this page.

Monday, May 07, 2007

SJC Affirms Libel Verdict Against Boston Herald

The Massachusetts Supreme Judicial Court today affirmed the $2.09 million libel verdict against the Boston Herald and reporter David Wedge in a case brought by Superior Court Judge Ernest B. Murphy. In a decision written by Justice John Greaney, the court said: "We conclude that the verdict, as modified by the trial judge, holding the defendants liable for the calumnies published, is sound in fact and in law, and we now affirm the judgment entered on the jury's verdict."
At issue were a series of articles attacking Murphy as soft on crime. The first article ran under the headline "Murphy's law," with the subhead "Lenient judge frees dangerous criminals." It included the allegation that Murphy had said of a teenage rape victim, "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it."

The SJC found "that there is overwhelming evidence in the record from which to conclude, as the jury did, that the statements were defamatory and false." The court came down particularly hard on Wedge, finding that his testimony at trial was not believable and was impeached by contradictions in his earlier deposition testimony. "It is fair to say that, by the end of Wedge's testimony, his credibility on any material factual point at issue was in tatters," Greaney wrote.

As for the statement about the rape victim, Greaney found that overwhelming evidence indicated that Murphy's actual statements showed compassion and concern, not callousness. "The actual remarks made by the plaintiff in the lobby conference in the rape case … are polar opposites to what Wedge reported and demonstrate that the plaintiff had acted with compassion and prudent regard to assist the victim in restoring her life."

Greaney found that Wedge "deliberately attempted to mislead the jury" and acted with "actual malice" in his reporting of the stories. "There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity."

"Despite obvious reasons to doubt the quotation's accuracy, however, and although Wedge knew that there were others -- not connected to the district attorney's office -- who had been present at the robbery case lobby conference at which the statements purportedly were made, Wedge failed to interview anyone other than Crowley," Greaney wrote.

"When substantial doubts have been raised as to the veracity of a reporter's information, the purposeful failure to investigate known witnesses may be proof of actual malice. … The evidence, clearly and convincingly, supports the inference that Wedge included the 'tell her' quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article."

Greaney said that "most damaging" to Wedge were the circumstances in which he discarded his notes. Even though Wedge testified that he routinely discarded his notes within days, Greaney found it "highly improbable" that would discard them here, having already been put on notice by a lawyer that Murphy claimed he was misquoted.

"The jury were entitled to draw the negative inference that Wedge discarded his notebook in a deliberate effort to conceal what he knew were inaccuracies in his reporting. This inference, in turn, provides a strong basis for a finding of actual malice."

Greaney concludes: "The record contains sufficient evidence to permit the conclusion that the defendants published the quotation, and other defamatory statements concerning the plaintiff, with knowledge of their falsity or with serious doubts as to their truth."

Thursday, May 03, 2007

NH Court Says Repeat Criminal Not 'Libel Proof'

The New Hampshire Supreme Court has reversed a lower court ruling that a repeat criminal is "libel proof" -- meaning that his reputation was already so bad that false statements in a newspaper could not make it worse. According to an Associated Press report published by the Concord Monitor, state prison inmate Terry Thomas will now be able to proceed with his libel lawsuit against The Telegraph of Nashua and police officers who were quoted in the article. The AP report says:
"The Telegraph had argued Thomas was libel-proof for two reasons: He already had such a lengthy criminal record that even false statements could not damage his reputation further, and any disputed statements in the article would not harm his reputation beyond the true statements in the same article."
But the Supreme Court said the first ground would apply only if the plaintiff was already notorious because of widespread publicity about his crimes, which was not the case with Thomas. "Criminal convictions alone are not enough to justify application of the doctrine," the court said.

The court declined to decide the second question, the AP reports, saying that Thomas had challenged more than half the statements in the article and that, while evidence supported some of them as true, the lower court had not decided whether others were false, statements of opinion or protected by the fair-reporting privilege.

The full text of the opinion is here.

Wednesday, May 02, 2007

To Russia to Discuss Media Law

I am thrilled to announce that I will be visiting Russia May 12-19 as part of a five-person delegation to discuss the relationship between the news media and the courts. We will be visiting the Siberian city of Tomsk, some 2,200 miles east of Moscow, where we will meet with Russian judges, lawyers, journalists and law students. Through a series of meetings and presentations, we will share perspectives on libel and defamation law, media access to judges and court proceedings, media coverage of court proceedings and other issues of common interest.

The trip is under the auspices of the Russian American Rule of Law Consortium, an organization that promotes partnerships between legal communities in the United States and Russia. Massachusetts has had such a partnership with Tomsk since 2001.

Details on the trip I am part of can be found here.

Podcast: Colleges and Legal Liability

In the wake of the Virginia Tech shootings, our legal-affairs podcast Lawyer2Lawyer examines the legal liability of higher-education institutions for students who are homicidal or suicidal. Joining my cohost J. Craig Williams and me for this discussion are Anthony J. Sebok, professor at Brooklyn Law School and author of a recent article exploring Virginia Tech's liability, and Robert B. Smith, partner with the Boston firm Nelson, Kinder, Mosseau & Saturley and author of a recent opinion piece in The Chronicle of Higher Education about student suicide and colleges' liability.

Listen to or download the full program at this page.

Tuesday, April 24, 2007

Shield law scorecard: One win, one loss

While I away last week, there was good and bad news on the shield law front.

In Washington, the state legislature approved a shield law and sent it on to the governor, who was expected to sign it. The Seatlle Post-Intelligencer has details.

Meanwhile, a Texas shield bill died after failing to be brought for a vote. More details from AP via the First Amendment Center.

Here in Massachusetts, a shield bill remains pending in the state legislature.

Friday, April 13, 2007

Podcast: Imus and the Law

It's all Imus all the time this week in the media and in the blogosphere. But what does the law have to say about all this? Did Imus commit libel? What about the First Amendment? Where's the FCC in all this? Did he have an employment contract? We get the answers to those questions and more this week on our legal-affairs podcast Lawyer2Lawyer, with two top media lawyers and a civil rights lawyer to help us out. Our guests for this program are:
Download or listen to the program at this page.

Wednesday, April 11, 2007

Podcast: The Internet Bar

The world is shrinking, thanks to the Internet, and that includes the legal world. More and more, the practice of law is global. One legal organization that seeks to harness this global network of lawyers in furtherance of promoting online justice is and its educational arm, the Institute. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss the work of with three of its key members:

Download or listen to the program from this page.

Thursday, April 05, 2007

SJC Denies Post-trial Access to Jury List

The Massachusetts Supreme Judicial Court today denied a newspaper's request for post-verdict access to jurors' names and addresses in a New Bedford criminal trial. Justice Judith Cowin wrote for the court that First Amendment rights must bow to a legitimate concern for juror safety. The request had been made by the New Bedford Standard-Times newspaper. The Massachusetts Newpaper Publishers Association (of which I am executive director) had filed a brief as amicus curiae.

The full text of the decision follows.



January 2, 2007. - April 5, 2007.

Constitutional Law, Impoundment order. Uniform Rules on Impoundment Procedure. Practice, Criminal, Impoundment order, Jury and jurors. Jury and Jurors. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Public Records.

INDICTMENT found and returned in the Superior Court Department on September 26, 2002.

Following entry of an order impounding the jury list by Gary A. Nickerson, J., review of the order was sought by a nonparty from a single justice of the Appeals Court.

The matter was reported to a panel of the Appeals Court by Elspeth B. Cypher, J. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.

Anthony C. Savastano for The Standard Times Publishing Company.

Randall E. Ravitz, Assistant Attorney General, for the Superior Court Department of the Trial Court for the county of Bristol.

Peter J. Caruso & Peter J. Caruso, II, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ.


In this appeal, the Standard-Times Publishing Company, publisher of the New Bedford Standard-Times newspaper (the Standard-Times), seeks review of an order of a judge in the Superior Court impounding the names and addresses of jurors who served at a murder trial involving alleged gang violence. We conclude that in light of identified and justifiable concerns regarding the jurors' safety, the impoundment order was not an abuse of discretion. [FN1]

Background. The relevant background is set forth in the judge's order. The defendant was charged with murder in the first degree and conspiracy in the shooting death of the victim. At trial the Commonwealth introduced evidence that the defendant and another individual were members of a New Bedford street gang, and that they killed the victim, a member of a rival gang, by firing multiple rounds at him in his automobile in what the judge termed "an indiscriminate act of gang vengeance." One of the Commonwealth's principal witnesses at trial was the defendant's girl friend. Prior to her testimony, she was attacked by an unknown individual who fired shots at her in her automobile, lodging four bullets in the car but leaving her unharmed. During the trial, the judge discharged one of the empanelled jurors, a New Bedford resident who worked near where the events took place, because she "had become so fearful of the circumstances surrounding the case that she could not fairly continue." The jury ultimately returned a verdict of not guilty. Two hours later, police were called to the house of the defendant's mother, which had been sprayed with gunfire by an unknown assailant. At least eleven shots were fired at the home, one grazing a bystander.

Prior to the verdict, a reporter for the Standard-Times filed a motion requesting postverdict access to the names and addresses of the trial jurors. The Standard-Times later filed an "Amended Motion for Jury List" seeking the same information. At a hearing on the motion, counsel for the Standard-Times argued that the newspaper had a right to the information under both the First Amendment to the United States Constitution and the common-law right of access to judicial records. Neither the Commonwealth nor the defendant took a position. The Commonwealth did, however, express reservations about releasing the identities of the jurors, due chiefly to juror safety issues, and brought to the judge's attention the shooting that had taken place shortly after the verdict. The judge asked the Commonwealth to provide police reports from that incident and from the shooting involving the defendant's girl friend, of which the judge was already aware.

In a thoughtful memorandum of decision, the judge denied the motion for access to the jury list and ordered the jurors' names and addresses impounded, stating that "[a] genuine concern for the safety of [these] jurors bars any release of identifying data." The judge particularly emphasized the shooting incident immediately after the trial, which, based on its timing and location, he interpreted as retaliation for the jury's verdict of not guilty. The Standard-Times sought review of the order from a single justice of the Appeals Court, arguing that the impoundment of the jury list was both legally erroneous and not supported by sufficient findings. [FN2] The single justice reported the case to a panel of the Appeals Court. The Attorney General entered an appearance on behalf of the Superior Court Department of the Trial Court (Superior Court). [FN3] We transferred the matter here on our own motion.

Procedure. As an initial matter, the Superior Court argues that the instant appeal was not properly before the single justice of the Appeals Court. This argument requires us to revisit the question of the proper procedure for nonparties, including members of the media, to obtain access to impounded court documents. See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 600-602 (2000); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 629 nn. 2 & 3 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (1977).

Recently, in the Republican Co. case, we provided guidance on this recurring issue with particular regard to criminal cases:

"Where possible, a nonparty seeking access to material that has been impounded in the course of a criminal proceeding should file a motion to be heard in the proceeding and in the court that issued the order of impoundment. In those circumstances where there is no ongoing proceeding that would allow for the filing of such a motion, a nonparty seeking relief from an order of impoundment may proceed by 'bring[ing] a civil action in the court which issued it, joining the clerk of that court in his official capacity and the parties to the action or at least any who obtained or may defend that order.' "

Republican Co. v. Appeals Court, supra at 227 n. 14, quoting Ottaway Newspapers, Inc. v. Appeals Court, supra at 551. The Republican Co. decision did not, however, explain the proper avenue of appellate review in such cases. A separate civil action brought against the court issuing the impoundment order will "end in a judgment capable of appeal under ordinary rules." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551. Here, however, where there was an "ongoing proceeding," the Standard-Times properly "file[d] a motion to be heard in the proceeding," Republican Co. v. Appeals Court, supra at 227 n. 14, but it was not clear how to obtain review of the disposition of its motion. The Standard-Times petitioned a single justice of the Appeals Court for review pursuant to G.L. c. 231, § 118, first par. However, this provision applies only to interlocutory orders in civil cases. See Stewart v. Commonwealth, 413 Mass. 664, 666 n. 5 (1992), S. C., 414 Mass. 1006 (1993). We therefore take the opportunity to clarify the correct procedure for nonparties, including the media, to obtain appellate review of an impoundment order in an ongoing criminal case.

In the past, when describing procedures to be followed regarding impoundment in criminal cases, we have looked to the Uniform Rules on Impoundment Procedure, which, although technically applicable only to civil proceedings, have been considered instructive in criminal cases as well. See Republican Co. v. Appeals Court, supra at 223 n. 8 & 225 n. 11. Indeed, we have stressed that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol described by the uniform rules." Id. at 227 n. 14. Thus, in the absence of any statute or rule expressly providing a route for appellate review of impoundment orders in criminal cases, we look to the analogous provision of the uniform rules, which provides that "[a]n order impounding or refusing to impound material shall be subject to review by a single justice of an appellate court in accordance with provisions of law and consistent with the procedures established in Rule 1:15 of the Rules of the Supreme Judicial Court." [FN4] Rule 12 of the Uniform Rules on Impoundment Procedure (2007). In future cases, appellate review of an impoundment order in an ongoing criminal proceeding should conform to the Uniform Rules on Impoundment Procedure, and should be sought in the first instance before a single justice of the Appeals Court, as was done in the present case. [FN5]

We impose an additional requirement relevant to motions filed in ongoing criminal cases by nonparties seeking access to impounded documents such as jury lists. While the parties to the underlying action will often have a sufficient interest to litigate such a motion adequately, sometimes, as in the present case, they may take no position. See In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir.1990) (where parties to action did not oppose release of jury list, it was helpful to have counsel for trial court to articulate position favoring jury privacy). In a case of this nature, the Attorney General is best suited to represent the interests of the public, including jurors, where the impounded materials may concern jurors. [FN6] Accordingly, the Attorney General must receive notice of, and an opportunity to be heard on, any motion filed in any court by a nonparty to obtain access to impounded documents in a criminal case. [FN7]

Relevant law. We turn to the substance of the Standard-Times's appeal. In Massachusetts, the right of public access [FN8] to judicial records is governed by overlapping constitutional, statutory, and common-law rules. There is no statutory right to the names and addresses of members of a jury panel.

[FN9] Only the list of the entire jury venire, which is not at issue here, is a public record pursuant to G.L. c. 234A, § 67. [FN10] Furthermore, while the questionnaires completed by jurors prior to their service are made confidential by statute, see G.L. c. 234A, §§ 22, 23, those documents are likewise not at issue here.

Massachusetts has long recognized a common-law right of public access to judicial records. [FN11] Republican Co. v. Appeals Court, supra at 222; Boston Herald, Inc. v. Sharpe, supra at 604. This right of access is not absolute, however, and must yield to a trial judge's decision to impound records for "good cause." Republican Co. v. Appeals Court, supra at 223; Boston Herald, Inc. v. Sharpe, supra. This balance of competing rights is reflected in the Uniform Rules on Impoundment Procedure, which "incorporate many of the principles of our prior cases, including the requirement that an order of impoundment be entered only on a showing of 'good cause.' "

[FN12] H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 332 (1987).

There is also a constitutional right of public access to court proceedings grounded in First Amendment principles. See Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9-10 (1986), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 634 (1988), cert. denied, 490 U.S. 1066 (1989). In this case, however, the judge did not attempt to apply a separate constitutional analysis, because none was necessary. The "good cause" analysis of rule 7 of the Uniform Rules on Impoundment Procedure "require[s] a judge to take into account essentially the same factors as required by the First Amendment: 'the competing rights of the parties and alternatives to impoundment.' " Republican Co. v. Appeals Court, supra at 223 n. 8, quoting Boston Herald, Inc. v. Sharpe, supra at 605 n. 24. Thus, in applying the "good cause" standard of the uniform rules, the judge of necessity treated the relevant constitutional considerations, and we do likewise.

Discussion. We review a trial judge's decision to impound judicial records for abuse of discretion or other legal error. Boston Herald, Inc. v. Sharpe, supra at 601. Here, the judge impounded the jurors' names and addresses based on a concern for juror safety that was amply justified by the circumstances surrounding the trial.

The safety of jurors is crucial to the functioning of the judicial system, see Commonwealth v. Acen, 396 Mass. 472, 482 (1986) (recognizing that jury service is "critical to the just operation of the court system"). If jurors doubt the system's ability to protect them from violence, cooperative service is discouraged and public confidence in the rule of law diminished. Furthermore, as one court has astutely observed, "[u]ninhibited and frank jury deliberations are essential to our system of justice. That frankness would be jeopardized if jurors refrained from speaking freely because they fear for their safety should their names and comments become public knowledge." In re Disclosure of Juror Names and Addresses, 233 Mich.App. 604, 628 (1999). See United States v. Giraldi, 858 F.Supp. 85, 86 (1994) (recognizing court's duty to impound juror information where necessary to protect jurors from reprisal and intimidation). While other key participants in a high-profile criminal trial involving dangerous offenders--the prosecutor, the defense attorney, and the judge--have all willingly accepted any attendant publicity and risks, the jurors have not. Having conscripted jurors into what has been aptly termed, "next to bearing arms in defense of the nation, ... the highest calling of American citizenship," United States v. Doherty, 675 F.Supp. 719, 722 n. 4 (D.Mass.1987), the justice system owes them the highest degree of vigilance for their personal safety.

We have no difficulty concluding that, in this particular murder trial, considerations of juror safety warranted impoundment of the jury list. The killing itself was an appalling act of violence. One of the Commonwealth's key witnesses was the victim of an armed assault prior to trial. A mere two hours after the jury's verdict acquitting the defendant, and ostensibly in response to it, an unknown assailant shot at the house of the defendant's mother. Indeed, one of the jurors feared so greatly for her safety that she had to be released from service.

With the exception of the postverdict shooting, which was made known to the judge at the motion hearing and through a police report, all of these facts were known to the trial judge as a result of presiding at the trial. In fact, although purporting to contest the legitimacy of the jurors' safety concerns, the Standard-Times states that its very purpose in seeking access to the jurors was to investigate the role that fear of retaliation may have played in their verdict. [FN13] Thus, in the circumstances of this case, there is no merit to the Standard-Times's argument that the judge was required to conduct an evidentiary hearing regarding the juror safety issues. The uniform rules require only written findings of good cause made after a "hearing," and do not expressly mandate an evidentiary hearing. See note 12, supra. There may be special cases where it is necessary to have an evidentiary hearing on whether to impound a jury list, but here, where facts known to the judge by virtue of presiding over the trial raised serious questions of juror safety, it was unnecessary.

We recognize the cases cited by the Standard-Times and the amicus in which other jurisdictions, notably the United States Court of Appeals for the First Circuit, have been protective of the public's right to access juror information. [FN14] See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990). See also In re Baltimore Sun Co., 841 F.2d 74 (4th Cir.1998); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146 (2002). We find significant, however, the acknowledgment in several of these cases that "First Amendment rights may have to bow to a court's needs to protect its essential processes, including the jury system, from violence, fraud and other influences that threaten the objectivity and independence of jurors." In re Globe Newspaper Co., supra at 97 n. 10. See In re Disclosure of Juror Names and Addresses, supra at 628-631 (remanding for consideration of risks to juror safety from disclosure). It goes without saying that no case has been called to our attention in which a public right to juror information was held to override a legitimate concern for juror safety.

Conclusion. Because the judge had good cause to impound the jury list, there was no abuse of discretion or other error. The order of the Superior Court denying the amended motion for the jury list and impounding the names and addresses of the trial jurors is affirmed.

So ordered.

FN1. We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association.

FN2. The Standard-Times contends that the trial judge was required to hold an evidentiary hearing in order to make the requisite findings. However, it does not appear that the Standard-Times ever specifically requested an evidentiary hearing.

FN3. In so doing, the Attorney General was presumably guided by the practice of our prior cases in which the court that issued a challenged impoundment order is a named defendant. See generally Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass.

628 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539 (1977).

FN4. S.J.C. Rule 1:15, as appearing in 401 Mass. 1301 (1998), governs impoundment procedure in the appellate courts. Rule 1:15 draws no distinction between criminal and civil appeals, providing that the Uniform Rules on Impoundment Procedure, "when used in conjunction with this rule, shall govern impoundment in both civil and criminal proceedings."

FN5. Because there was considerable doubt as to the proper appellate procedure in these circumstances, we may entertain this appeal under our superintendence powers pursuant to G.L. c. 211, § 3, "to resolve the doubt and settle a general rule." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551.

FN6. As in the present case, the Attorney General has often appeared in litigation to represent the court issuing an impoundment order. See note 3, supra. This is merely an extension of the Attorney General's authority to represent judges and courts in litigation, see Casey v. Justice of the Superior Court, 229 Mass. 200, 202 (1918), and duty to represent the public interest. See Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154,

163 (1975).

FN7. Such notice should clearly specify that notice is being given as required by law and that the attorney general has the right to be heard.

FN8. Like the right to attend court proceedings, the right of the media to gain access to judicial records "derives entirely from the public's right of access," and the media "have neither a greater nor a lesser right ... than any other member of the public." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 505 (1995).

FN9. There was a document containing the names of the empanelled jurors, as indicated by numerous references to "the jury list." Regardless whether this document contained the addresses of the jury members, they could easily be obtained from the list of the entire jury venire, which is a public record. See G.L. c. 234A, § 67, set forth at note 10, infra.

FN10. General Laws c. 234A, § 67, provides:

"Not later than ten days in advance of scheduled appearances by jurors, the office of jury commissioner shall send or deliver to the appropriate clerks of court a list of the grand and trial jurors expected to appear for service in

the respective courts. The list shall contain the name, address, and date of birth of each juror and such other information as the jury commissioner, with the approval of the committee, deems appropriate. Unless the court orders otherwise, the list shall be available upon request for inspection by parties, counsel, their agents, and members of the public."

FN11. We assume, without deciding, that, in this case the information sought by the Standard-Times constitutes a "judicial record."

FN12. Rule 7 of the Uniform Rules on Impoundment Procedure (2007) provides, in part: "An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law. In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of the community interest, and the reason(s) for the request."

FN13. While we of course share the Standard-Times's concern that jury verdicts not be influenced by fear of reprisal, we do not believe that the solution is to subject jurors to publicity that can only enhance these fears.

FN14. To be sure, there are cases as well which recognize no right to jurors' information, or give trial judges unfettered discretion to impound it. See generally Gannett Co. v. State, 571 A.2d 735 (Del.1990), cert. denied, 495 U.S. 918 (1990); Newsday, Inc. v. Sise, 71 N.Y.2d 146 (1987), cert. denied, 486 U.S. 1056 (1988); Commonwealth v. Long, 871 A.2d 1262 (Pa.Super.2005), appeal granted in part, 584 Pa. 437-438 (2005).