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."

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.

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.

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:

• Journalists Make Pitch for State Shield Law.
• Journalists Testify in Favor of Shield Law.

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.