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.