Podcast: Judge Gertner on Blogging, Speech

U.S. District Judge Nancy Gertner, who attracted the attention of bloggers and the news media earlier this year when she joined the roster of contributors to the new Slate legal blog, Convictions, shares her thoughts on judicial blogging and judicial speech in this week's episode of our legal-affairs podcast Lawyer2Lawyer.

Judge Gertner is the first Massachusetts judge -- federal or state -- to blog and one of only a handful of judges nationwide who blog. She believes strongly that judges should have more leeway to discuss their work, through blogs and other media. "The more we talk about what we do, the more we expose the shibboleths and the more maybe we can get back to respecting the institution," she tells us in this interview.

You can listen to or download the entire interview from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Reporters Won’t be Called in Boston Case

The judge presiding over a Massachusetts murder trial ruled yesterday that that two reporters will not be forced to testify about how they obtained a suicide note written by the defendant in jail while awaiting trial. David E. Frank has the news at the Massachusetts Lawyers Weekly blog The Docket.

Op-ed on open meetings bill

The Boston Globe today published an op-ed I wrote on current efforts to reform the Massachusetts open meeting law: Open the doors to public meetings.

Podcast: Polygamy and the Law

The raid of a polygamist compound in West Texas has raised difficult and troubling issues concerning the interplay between the state, religion and the rights of children, women and families. This week on the legal-affairs podcast Lawyer2Lawyer, I discuss the events in Texas with two guests: Betsy Branch, a family-law attorney with the Dallas firm of McCurley, Orsinger, McCurley, Nelson & Downing, who serves as attorney ad litem for several children in the West Texas case, and lawyer and social critic Wendy Kaminer, who has written about the civil liberties aspects of the case at the blogthefreeforall.net.

• Episode details.
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Podcast: The Case for the Federal Shield Law

John McCain's endorsement this week of a federal shield law for journalists has given renewed momentum to the Free Flow of Information Act pending in Congress (S 2035). At the same time, the U.S. Department of Justice has renewed its offensive against the bill with the launch of a special section of its Web site devoted to its opposition and an op-ed in USA Today by Attorney General Michael B. Mukasey. The debate takes on greater urgency as former USA Today reporter Toni Locy awaits word from a federal appeals court on whether she will be forced to pay contempt fines of $5,000 a day for protecting her sources.

We discuss the journalists' privilege and the need for a federal shield law in this week's episode of the legal-affairs podcast Lawyer2Lawyer. Joining my co-host J. Craig Williams and me as guests on the program are three experts in constitutional and media law:

• Lucy Dalglish, a lawyer and executive director of the Reporters Committee for Freedom of the Press
• Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor and former dean at the University of Chicago Law School
• Joel Kurtzberg, a partner with the firm Cahill Gordon & Reindel LLP who frequently represents reporters and news organizations

In the program, we discuss the federal bill, high-profile cases involving reporters, states’ efforts to enact their own shield laws, and the rights of journalists and bloggers. The program can be streamed or downloaded from this page.

You can stay up to date with all Lawyer2Lawyer programs by subscribing via RSS or through iTunes.

Text of Open Meeting Bill

The open meeting bill (H 3171) reported yesterday by the Joint Committee on State Administration and Regulatory Oversight would overhaul the law by centralizing oversight and enforcement in the attorney general's office. Since the text of this most recent version does not yet appear on the legislature's Web site, I am posting it here in its entirety. -- RJA

The Commonwealth of Massachusetts

An Act Regulating Open Meetings of State, Local, and Regional Public Bodies

Be it enacted by the Senate and House of Representatives in General Court assembled and by the authority of the same, as follows:

SECTION 1: Sections 11A and 11A-1/2 of chapter 30A are hereby repealed.

SECTION 2: Sections 9F and 9G of chapter 34 are hereby repealed.

SECTION 3: Sections 23A through 23C of chapter 39 are hereby repealed.

SECTION 4: Said chapter 30A is hereby amended by adding the following new sections:-

Section 19: Definitions

For purposes of Sections 19 through 25 of this chapter, the following terms shall have the following meanings:

(a) Executive Session – Any part of a meeting of a public body executive to the public for deliberation of certain matters.

(b) Deliberation – Any communication between a quorum of a public body on any public business within its jurisdiction. Deliberation does not include the mere distribution of a meeting agenda, scheduling information, or distribution of other procedural meeting details, nor does it include the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.

(c) Emergency – A sudden, generally unexpected occurrence or set of circumstances demanding immediate action.

(d) Intentional Violation – Any act or omission by a public body, or any member thereof, in knowing violation of the open meeting law.

(e) Meeting – Any corporal convening or electronic convening, which shall include video, web or telephone conferencing or electronic mail, and deliberation by a public body with respect to any matter within the body’s jurisdiction. A meeting shall not include:

(A) An on-site inspection of any project or program, provided that the members do not deliberate.

(B) Attendance by a quorum of a public body at any public or private gathering, such as a conference, training program, media, social or other event, provided that the members do not deliberate.

(C) Attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, provided that the visiting members do not deliberate, but communicate only by open participation in the meeting on those matters under discussion by the host body.

(D) A meeting of a quasi­-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it.

(E) Any session of a Town Meeting convened under section 10 of chapter 39, or attendance by a quorum of a public body at any such session.

(f) Minutes – The written report of a meeting created by a public body as required by subsection (a) of Section 22 and section 5A of chapter 66.

(g) Open Meeting Law – Sections 19 through 25, inclusive, of chapter 30A.

(h) Post Notice – To display conspicuously the written announcement of a meeting in hard copy or electronic format.

(i) Preliminary Screening – The initial stage of screening applicants, which shall not include interviewing candidates, conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for interview and further consideration.

(j) Public Body - Any multiple-member board, commission, committee, or subcommittee within the executive or legislative branch of the commonwealth or within any county, district, city, region or town, however created, elected, appointed, or otherwise constituted, established to serve a public purpose. The governing board of a local housing, redevelopment, or other similar authorities shall be deemed a local public body. The governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body. The term “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch, or bodies appointed by a constitutional officer solely for the purpose of advising one ore more constitutional officers, nor shall it include the board of bank incorporation or the Policyholders Protective Board. A subcommittee shall be deemed to include any multiple-member body created to advise or make recommendations to a public body.

(k) Quorum – A simple majority of the members of the public body, unless otherwise defined by general or special act, executive order, or other authorizing provision.

Section 20: Open Meeting Law Division; Open Meeting Law Advisory Commission; Annual Report, Education and Training

(a) There shall be in the department of the attorney general a division of open meeting law. The attorney general shall designate an assistant attorney general as director of said division. Said director may appoint and remove, subject to the approval of the attorney general, such expert, clerical or other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative or judicial proceedings pertaining to the enforcement of the open meeting law.

(b) The attorney general shall create and distribute educational materials, and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(2) applicability of this chapter to governmental bodies;

(3) the role of the attorney general in enforcing the open meeting law; and

(4) penalties and other consequences for failure to comply with this chapter.

(b) There shall be an open meeting law advisory commission. The commission shall consist of five members, four of whom shall be appointed by the attorney general, including a nominee of the Massachusetts Municipal Association and a nominee of the Massachusetts Newspaper Publishers Association; and one of whom shall be appointed by the secretary of the commonwealth. The commission shall review issues relative to the open meeting law and shall submit to the attorney general and to the House and Senate chairs of the joint committee on state administration and regulatory oversight recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

(b) The attorney general shall, no later than January 31^st of each calendar year, file with the commission and to the House and Senate chairs of the joint committee on state administration and regulatory oversight a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:

(1) the number of open meeting law complaints received by the attorney general;

(2) the number of hearings convened as the result of open meeting law complaints by the attorney general;

(3) a summary of the determinations of violations made by the attorney general;

(4) a summary of the orders issued as the result of the determination of an open meeting law violation by the attorney general;

(5) an accounting of the fines obtained by the attorney general as the result of open meeting law enforcement actions;

(6) the number of actions filed in Superior Court seeking relief from an order of the attorney general; and

(7) any additional information relevant to the administration and enforcement of the open meeting law that the attorney general deems appropriate.

(c) The attorney general shall create and distribute educational materials, and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(2) applicability of this chapter to governmental bodies;

(3) the role of the attorney general in enforcing chapter 30A of the general laws; and

(4) penalties and other consequences for failure to comply with this chapter.

Section 21: Open Meetings; Notice Required; Participation by Absent Members; Conduct; Certification; Open Sessions

(a) Except as provided in section 22 of this chapter, all meetings of a public body shall be open to the public.

(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays, and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.

(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.

For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed in this section for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed in this section for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy thereof shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.

For meetings of a state public body, notice shall be filed with the attorney general, the secretary of state and the information technology division, which shall post such notice on the mass.gov web site.

(d) Members of a public body not present at the meeting location may participate in said meeting through electronic means, whether through audio or video technology or both, provided the absent members and all persons present at the meeting location are clearly audible to each other and to the public attending the meeting, and provided a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote, and shall not be deemed absent for the purposes of section 23(D) of chapter 39.

(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement, and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.

(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting, and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.

(g) The office of open government shall create educational materials to be made available to local officials in order to foster awareness and compliance with the open meeting law. Within two weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the office, the receipt of a copy of the open meeting law and a copy of the guidelines prepared by the attorney general explaining the open meeting law and its application. Unless otherwise directed or approved by the office, the appointing authority, city or town clerk, or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.

Section 22: Executive Sessions

(a) A public body may meet in executive session for one or more of the purposes enumerated in this section provided that:

(1) the body has first convened in open session pursuant to section 21;

(2) a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;

(3) before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;

(4) the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and

(5) accurate records of the executive session shall be maintained pursuant to section 23.

(b) A public body may meet in executive session only for the following purposes:

(1) To discuss the reputation, character, physical condition, or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member, or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If a executive session is held, such individual shall have the following rights:

(A) to be present at such executive session during deliberations which involve that individual;

(B) to have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in said executive session;

(C) to speak on his own behalf; and

(D) to cause an independent record to be created of said executive session by audio-recording or transcription, at the individual’s expense.

The rights of an individual set forth in this paragraph are in addition to the rights that he may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements, and the exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.

(2) To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.

(3) To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares.

(4) To discuss the deployment of security personnel or devices, or strategies with respect thereto.

(5) To investigate charges of criminal misconduct or to consider the filing of criminal complaints.

(6) To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body.

(7) To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements.

(8) To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening.

(9) To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:

(A) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and

(B) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session.

Section 23: Minutes; Voting; Documents and Records; Intersection with the Public Records Law

(a) A public body shall create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time, and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made, and the actions taken at each meeting, including the record of all votes.

(b) No vote taken at an open session shall be by secret ballot. Any vote taken at a executive session shall be recorded by roll call and entered into the minutes.

(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.

(d) Documents and other exhibits, such as photographs, recordings, or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.

(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes, and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause 26 of section 7 of chapter 4. Notwithstanding the provisions of this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation, and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials, provided that any resume submitted by an applicant shall not be exempt.

(f) The minutes of any executive session, the notes, recordings, or other materials used in the preparation of such minutes, and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under exemption (a) of clause 26 of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer, provided that the executive session was held in compliance with section 22 of this chapter. When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials, and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or one or more of the exemptions under clause 26 of section 7 of chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

For purposes of this subsection, if a executive session is held pursuant to subsections (b)(2) or (b)(3) of section 22, then the minutes, preparatory materials, and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or one or more of the exemptions under clause 26 of section 7 of chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.

(2) Upon request by any person to inspect or copy the minutes of a executive session or any portion thereof, the body shall respond to said request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1) of this subsection, the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.

Section 24: Enforcement

(a) Subject to appropriation, the attorney general shall interpret and enforce the open Meeting Law.

(b) At least 30 days prior to the filing of a complaint with the office of open government, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed with the public body within 30 days of the date of the alleged violation,. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the office of open government and notify said office of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.

(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty, shall hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, one or more of the members, or both, are responsible, and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order:

(1) compelling immediate and future compliance with the open meeting law;

(2) compelling attendance at a training session authorized by the attorney general;

(3) nullifying in whole or in part any action taken at the meeting;

(4) imposing a civil penalty upon the public body of not more than one thousand dollars for each intentional violation;

(5) reinstating an employee without loss of compensation, seniority, tenure or other benefits;

(6) compelling that minutes, records or other materials be made public, and/or

(7) prescribing other appropriate action.

(d) A public body or any member of a body aggrieved by any order issued pursuant to this section may, notwithstanding any general or special law to the contrary, obtain judicial review of said order only through an action in superior court seeking relief in the nature of certiorari, provided that notwithstanding section 4 of chapter 249, any such action shall be commenced in the court within 21 days of receipt of the order. Any order issued pursuant to this section shall be stayed pending judicial review; provided, however, that if the order nullifies an action of the public body, the body shall not implement such action pending judicial review.

(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general hereunder, or shall fail to pay any civil penalty imposed thereby within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies, and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.

(f) As an alternative to the procedure set forth in subsection (c) of this section, the attorney general or three or more registered voters may initiate a civil action to enforce the open meeting law.

Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies, and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (c) of this section and may also impose a civil penalty upon the public body of not more than one thousand dollars for each intentional violation.

In any action filed pursuant to this subsection, the order of notice on the complaint shall be returnable no later than 10 days after the filing thereof and the complaint shall be heard and determined on the return day or on such day thereafter as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the provisions of the open meeting law.

(g) It shall be a defense to the imposition of a penalty that the public body or any member thereof, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.

(h) Payment of civil penalties under this section shall be made to the office of open government to be used without further appropriation to provide for open meeting law education and training throughout the commonwealth.

Section 25: Rulemaking Authority

The attorney general shall have the authority to promulgate rules and regulations to carry out the provisions of Section 24(a), (b), (c), (d) and (e).

SECTION 5. Section 5A of chapter 66 is hereby amended by deleting the words “sections eleven A of chapter thirty A, nine F of chapter thirty-four and twenty-three B of chapter thirty-nine” and inserting in their place the following:- section 23 of chapter thirty A.

SECTION 6 Sections 1, 2, 3, 4, 5 and 6 of this act shall take effect on July 1, 2009.

Open Meeting Bill Lacks Teeth

A bill to overhaul the Massachusetts open meeting law was reported favorably out of committee yesterday. While there is a lot to like about the bill, it is disappointing for its failure to address the most significant weakness in the law -- its lack of teeth. The bill that the Joint Committee on State Administration and Regulatory Oversight reported out represents a compromise between the bill filed by the House chair of the committee, Rep. Antonio F.D. Cabral (D-New Bedford) and a draft bill circulated but never filed by Attorney General Martha Coakley. Earlier versions of both bills would have given the law teeth and put Massachusetts on a par with most other states by authorizing fines against public officials who violate the law. Rep. Cabral's bill also would have authorized awards of attorneys' fees to citizens who brought successful actions to enforce the law. Yesterday's compromise bill dropped the penalties and the attorneys fees. While existing law allows a fine against a board that violates the law (as opposed to its members), the new bill weakens even that provision by adding in proof of "intent" as a condition precedent to the fine -- a standard that is nearly impossible to meet with regard to a public board or commission.

For more on the law, including comments from me, see these reports:

• Lawmakers ax fines for meeting violations.

• Move to reform open meeting law advances.

'Fahrenheit 9/11' Defamation Case Dismissed

A federal appeals court has dismissed the defamation lawsuit brought by a U.S. military veteran of Iraq against filmmaker Michael Moore over his depiction in the 2004 documentary Fahrenheit 9/11. In Damon v. Moore, the 1st U.S. Circuit Court of Appeals ruled Friday that former Army Reserves Sgt. Peter J. Damon's appearance in the documentary could not be construed as defamatory.

Damon lost his right arm and part of his left arm while on National Guard duty in Iraq in 2003. While awaiting surgery at Walter Reed Army Medical Center in Washington, D.C., he was interviewed by Brian Williams of NBC about a new pain blocker he was receiving. Damon consented to the interview's broadcast on Nightly News but not to its use elsewhere. Nonetheless, NBC allowed Moore to use it in the documentary, which was critical of President Bush and the Iraq war. The 16-second clip showed Damon describing the pain he had felt in his hands.

In his lawsuit, Damon claimed the film was an attack on the integrity of the Commander-in-Chief and on the Armed Forces and he alleged that his appearance in it defamed him by falsely portraying him as sharing and endorsing Moore's views. On appeal after the trial court dismissed the case, the 1st Circuit affirmed the dismissal, ruling that his appearance in the film was not susceptible to a defamatory meaning either within the community at large or within the community of military personnel and veterans.

"While we appreciate Damon's anger and frustration over appearing without his consent in a documentary that stands in direct contrast to his own personal and political beliefs, we conclude that his appearance in the documentary is not reasonably susceptible of a defamatory meaning. ... Since Damon's appearance was not reasonably susceptible to a defamatory meaning under Massachusetts law, we need not reach the question of whether being falsely labeled either pro- or anti-war, as a matter of law, holds a member of the military up to the type of scorn and ridicule required for a defamation claim."

The full decision can be read here.

Podcast: Spitzer and the Law

Lawyers considered Eliot Spitzer either a hero or a villain. But as the now-former governor of New York faces possible criminal charges, we explore the case against him on this week's edition of the legal-affairs podcast LegalTalkNetwork. Joining my cohost J. Craig Williams and me to discuss the legal case against Spitzer are: Harvey Silverglate, nationally known criminal defense and civil liberties lawyer, writer and blogger; Dan Slater, lead writer for The Wall Street Journal's Law Blog; and David Frank, former criminal prosecutor and now a reporter at Massachusetts Lawyers Weekly.

• Episode details.
• Download the MP3 file.
  
• Listen in Windows Media.
  

You can receive all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Libel Suit Tossed Against Local News Site

A Vermont judge has dismissed the libel lawsuit filed against Chris Grotke and Lise LePage over a comment posted on the community news site they co-founded, iBrattleboro.com. The plaintiff, Effie Mayhew, had argued that they should have edited or removed the allegedly defamatory comment. But the judge found that they are immune from liability under section 230 of the Communications Decency Act.

David Ardia has full details at Citizen Media Law Project.

Town's Unposted Meetings Violated Law

The town of Charlton's ad hoc Water Search Subcommittee violated the Massachusetts open meeting law when it met in a series of unposted meetings, the Worcester District Attorney's Office has ruled. According to the Worcester Telegram & Gazette, the meetings came to light after the newspaper filed a public records request for the subcommittee's minutes. Upon learning of the illegal meetings, the newspaper filed a complaint with the DA.

Sunshine Week coverage in Mass.

I am collecting links to Sunshine Week coverage by Massachusetts newspapers at the Web site of the Massachusetts Newspaper Publishers Association.

Podcast: Incompetence Among Immigration Lawyers

A recent decision of the 2nd U.S. Circuit Court of Appeals opened with these words: "With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country." This week on the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I explore the competence of legal representation provided to immigrants. Joining us as guests to discuss this issue are three experts in immigration law:

• Lisa D. Ramirez, an immigration lawyer in Santa Ana, Calif.
• Nora Privitera, special projects attorney for The Immigrant Legal Resource Center in San Francisco.
• Eleanor Newhoff, immigration lawyer in Cambridge, Mass., and part-time attorney for Greater Boston Legal Services.
  

We discuss the quality of legal representation provided to immigrants, why so many immigrants receive inadequate legal assistance and what lawyers are doing to educate clients and the bar.

• Episode details.
• Download MP3 file.
• Listen in Windows Media.

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Podcast: The Lawyer Candidates

With the Democratic race for president down to two lawyers, how well did the legal careers of Senators Barack Obama and Hillary Rodham Clinton prepare them to become our nation's chief executive. That is the topic this week on the legal-affairs podcast Lawyer2Lawyer, as my cohost J. Craig Williams and I are joined by:

• Professor Paul Finkelman, the President William McKinley distinguished professor of law and public policy at Albany Law School and author -- among his many publications -- of the chapter, "Abraham Lincoln: Prairie Lawyer," in the book, America's Lawyer Presidents: From Law Office to the Oval Office.
• Robert J. Spitzer, distinguished service professor of political science at SUNY Cortland and author of several books about the presidency, as well as the forthcoming book, Saving the Constitution from Lawyers.
  

We discuss how well legal experience prepares a candidate to become president and look at the specific careers of Obama and Clinton.

Listen to or download the show from this page. Subscribe to receive all Lawyer2Lawyer programs via RSS or using iTunes.

MA to Review Rules Limiting Judicial Comment

The Massachusetts Supreme Judicial Court announed today that it has appointed a panel to consider whether to revise the rule limiting public comment by judges. Canon 3B(9) of the Massachusetts Code of Judicial Conduct requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." The rule came under fire most recently in when Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who is charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

Asked about the incident during her speech at the Nov. 30 annual meeting of the Massachusetts Newspaper Publishers Association, SJC Chief Justice Margaret H. Marshall indicated she might revisit the rule. In today's announcement, the court said:

"The Committee's task is to provide the Justices with a recommendation regarding changes, if any, that should be made in the canons or commentary to that provision of the Code, or such other recommendations relating to public comment by judges that the Committee wishes to make. The Justices have asked the Committee to submit its report within three months."

Chairing the 11-member committee is Superior Court Judge E. Susan Garsh, a former media lawyer. Other members include lawyers, judges and a law professor.

Podcast: Virtual Law Firms

Almost since the earliest days of the Internet, lawyers have been experimenting with virtual firms to increase efficiency and lower costs. More recently, virtual firms have taken on greater levels of sophistication and complexity. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss this phenomenon with the principals of two virtual firms and a business-development consultant. Joining my cohost J. Craig Williams and me are: Larry Bodine, business development consultant and author of the Law Marketing Blog; Wyatt Durrette, founding member of the virtual IP firm XDL Group; and Mark Harris, CEO of Axiom Legal.

Download or listen to the program on this page or listen on your mobile phone using mobilize. Subscribe to receive all Lawyer2Lawyer programs via RSS or using iTunes.

Podcast: Social Networking and the Law

This week on our legal-affairs podcast Lawyer2Lawyer, my co-host J. Craig Williams and I look at the topic, Social Networking and the Law. We have an insightful conversation with three guests who have very different perspectives on the topic: Chris Carfi, co-founder of business-networking company Cerado; Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law; and Kara Swisher, co-executive editor of All Things Digital. Listen to or download the program at this page.

Reg Requires Media to Wear Safety Vests

A Federal Highway Administration regulation that takes effect later this year appears to require members of the news media to wear high-visibility safety apparel when covering events on federally supported highways. The regulation, published at 71 Federal Register 67792, requires, "All workers within the right-of-way of a Federal-aid highway who are exposed either to traffic (vehicles using the highway for purposes of travel) or to construction equipment within the work area shall wear high-visibility safety apparel." The term "workers" is defined to include "responders to incidents," and the explanatory notes that preface the regulation (on page four, far right column) say that includes "media representatives when covering news events or similar actions within highway rights-of-way." The regulation takes effect on Nov. 24, 2008, and will be published as 23 CFR Part 634.

E-mails did not Violate Open Meeting Law

A Massachusetts district attorney has ruled that a Northampton city councilor did not violate the state's open meetings law when he sent e-mails discussing city business to a majority of city councilors. The Daily Hampshire Gazette reports that Northwestern Assistant DA Cynthia M. Pepyne concluded that the e-mails were lawful because they did not result in deliberation among the council members.

The newly elected councilor had not been sworn in when he sent the e-mails. If I understand the story correctly, he sent the e-mails to nine city residents and the council president. In them, he discussed other communications he'd had with other councilors asking where they stood on an issue that was to be voted on at the next council meeting.

"While Reckman's email correspondence was within the bounds of the law," reporter Dan Crowley writes, "Pepyne noted in her ruling that email communications amongst a quorum of members of the City Council, even if conducted in serial fashion, will constitute a violation of the Open Meeting Law and subject the council to enforcement proceedings."

The Republican Opposes CORI Changes

An editorial today in The Republican, Changes in CORI Would Be a Crime, says that Gov. Deval Patrick's proposed changes to the Criminal Offender Record Information law, or CORI, would restrict the public's right to know about criminal convictions in a job applicant's past. The bill -- available here -- proposes various changes to the composition of the criminal history systems board and creates a criminal justice information services department. From the perspective of public and news media access, the significant provisions of the bill are those that reduce the time periods after which offenders can request sealing of their records:

• Records of misdemeanors could be sealed after five years, instead of the current 10 years.
• Records of felonies could be sealed after 10 years, instead of the current 15.
• The requirement of 10 years without a conviction prior to sealing would be changed to five for misdemeanors.
  

Those changes are contrary to the public interest, says The Republican:

"This law was passed as a public safety measure. Parents in Massachusetts, for example, can be reasonably certain that the bus driver who transports their children to school every day does not have a history of drunken driving convictions. That's the CORI at work -- and, although it has its flaws, it does not need to be disassembled."

I am Interviewed on LexBlog

Thanks to Rob La Gatta at Real Lawyers Have Blogs, the blog of LexBlog, for publishing this Q&A with me.

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.

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.

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:

• Thomas V. Girardi of Girardi & Keese, one of the six attorneys who made up the plaintiffs' negotiating committee.
• Leigh O'Dell, a member of the Vioxx litigation team at the law firm Beasley Allen, whose partner Andy D. Birchfield Jr. was also a member of the plaintiffs' negotiating team.
  

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.

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:

• Richard L. Gabriel, national lead counsel for the RIAA and a partner with the Colorado law firm Holme Roberts & Owen LLP.
• Fred von Lohmann, senior staff attorney specializing in intellectual property issues with the Electronic Frontier Foundation.
  

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.

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.

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.

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.

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.

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.

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.

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 Law.com's Legal Blog Watch. I have not seen the full text of this ruling posted elsewhere online, so here it is.]

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
A.C. 2007-J-455

BOSTON FIREFIGHTERS UNION, IAFF, LOCAL 718
v.
WHDH TV, CHANNEL 7

MEMORANDUM OF DECISION

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

FOOTNOTES

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.

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.