Mass. Court Says News Carrier is Employee

In a case involving the Worcester Telegram and Gazette, the state Appeals Court ruled yesterday that independent news carriers are to be considered employees under the state's unemployment compensation law. The ruling hinged on the "degree of control" exercised by the newspaper over the carrier, with the court finding that the T&G exercised greater control than did the Athol Daily News in a 2003 case in which the Supreme Judicial Court reached the opposite conclusion.

• The court's opinion: Driscoll v. Worcester Telegram & Gazette.
• The T&G news report: State Appeals Court rules T&G carrier as employee.
  

Key excerpts on the control issue:

"WT&G retained control over its carriers' routes by requiring that each carrier provide a list of the delivery order, and continue to deliver the newspapers in that order. WT&G's control of the routes included the right to require carriers to deliver to some customers before others, and to change the routes or papers to be delivered.

"Furthermore, the district manager directly supervised the new carriers, and retained the authority to go on the route to determine if the carrier was performing his job to WT&G's and the customers' satisfaction. WT&G required its carriers to modify their performance to satisfy a customer, and could discharge a carrier because of customer complaints. ... Other undisputed facts support the conclusion that Driscoll was an employee and further distinguish the circumstances in this case from those in Athol Daily News. WT&G reserved the right to demand additional services from its carriers, such as delivering product samples or installing delivery tubes. The publisher in Athol Daily News had no such right. ... WT&G carriers did not own the newspapers, which remained the property of WT&G, nor could they sell the papers at a price higher than that established by WT&G. WT&G's customers paid WT&G directly and WT&G paid the carrier, after deducting all fees and redress charges, for all customers on the route, regardless of whether a particular customer had paid WT&G. The News carriers, on the other hand, purchased the papers from the publisher, had the right to set their own price per newspaper and, if the customer paid the publisher directly, the News refunded the carriers once the customer had paid the publisher.(11) Id. at 173. While the carriers in Athol Daily News could deliver the papers 'on foot, by bicycle, automobile, motorcycle, or otherwise,' id. at 178, WT&G required its carriers 'to have a reliable motor vehicle.'

"Additionally, WT&G required that it be notified in writing, in advance, of any delegated substitute carrier and the period of delegation, and prohibited the use of substitute carriers with delivery histories that it did not deem acceptable. WT&G also required its carriers to obtain approval before giving customers notices concerning future deliveries of its papers. No such restrictions on substitutes were imposed on the carriers in Athol Daily News. Rather, '[w]ithout approval from the News," the News carriers could "be assisted by anyone in the delivery of the newspapers.'"

Podcast: Ike's Impact on Texas Lawyers

When Hurricane Ike hit the Texas coast, lawyers were not spared. Many lawyers were hard hit in both their profesisonal and personal lives. On this week's episode of the legal-affairs podcast Lawyer2Lawyer, my cohost J. Craig Williams and I interview Bill Livesay, executive director of Andrews Kurth LLP in Houston, and Miriam Rozen, staff reporter for Texas Lawyer newspaper. They share their accounts of Hurricane Ike and discuss its impact on the broader legal community.

Listen to or download this week's program from this page.

Nantucket Ordered to Release Records

Acting on an appeal by the Inquirer and Mirror newspaper, the Massachusetts Division of Public Records has ordered Nantucket officials to release a confidential settlement agreement entered into with a former town employee, the Inquirer and Mirror reports today. The town had denied the newspaper's public records request, citing privacy concerns.

New Complaint Filed on Open Meeting Law

From today's Worcester Telegram & Gazette: "The Telegram & Gazette yesterday filed a violation of the Open Meeting Law complaint with Worcester District Attorney Joseph D. Early Jr.’s office regarding a Sept. 8 Water-Sewer Commission meeting that was not posted."

Northeastern Launches First Amendment Center

Northeastern University and the New England First Amendment Coalition have teamed up to launch the New England First Amendment Center, a project designed to focus public attention on access to public records and meetings. From Friday's announcement:

The First Amendment Center will continuously update its website with news about public access and First Amendment issues from across New England and around the nation. It will offer a wealth of information for citizens, journalists and public policy organizations that depend on open access to government. The Center will maintain a Hotline to advise citizens who are seeking public documents, and will conduct original research into issues of government transparency. The Center plans to host seminars on public records statutes and open meeting laws for journalists, municipal officials and lawmakers.

Coordinating the work of the center will be Walter V. Robinson, the former editor of the Boston Globe's Pulitzer Prize winning Spotlight investigative team. The center will also maintain a blog with contributions from Robinson; Dan Kennedy, assistant professor of journalism at Northeastern and author of the blog Media Nation; Doug Clifton, director of the New England First Amendment Coalition; and Tom Heslin, president of the coalition and interim executive editor at The Providence Journal.

Bloggers Offered Insurance, Legal Training

The Media Bloggers Association is spearheading a project to provide bloggers with first-of-its-kind liability insurance as well as free online training in media law. I have full details in a post today at Law.com's Legal Blog Watch.

Judges/Journalists Workshop Tomorrow

I will be speaking tomorrow at the New England regional Judges/Journalists Workshop in Portsmouth, N.H., sponsored by the National Center for Courts and Media.

Boston Flips Open Government on it Face

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people's business behind closed doors. I first heard about it through a story in the Boston Herald (Secret society: City Council mulls end to open meetings) and then obtained a copy through a post to a listserv. Part of a longer report, the discussion about the open meeting law is titled Remedial response to adverse judicial decisions interpreting the state's Open Meeting Law (PDF). The most recent of those "adverse decisions" was McCrea v. Flaherty, in which the state Appeals Court ruled that the Boston City Council has repeatedly violated the open meeting law.

Thankfully, the absurdity of the report has already been pointed out by Dan Kennedy, Sam Bayard and the editorial page of the Boston Herald. I say "thankfully" because the report is so patently absurd that I would not know where to start. As someone who has spent much of the last four years working for reform of the Massachusetts open meeting laws, I can say that I agree with one conclusion of the report: the laws need reform. From there, we part company and head off in diametrically different directions.

The report is based on two premises that are not merely weak, but downright wrong. The first is that the open meeting law prohibits public officials from speaking "offline" -- from exchanging "their views, concerns, strategies and/or suggestions in private with one another." It does not. As the commentators cited above all correctly note, it prohibits private meetings only among a quorum of officials. The second premise is that this "prohibition" on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I've ever heard or read.

The report goes on for some 30 pages before ending with three alternative recommendations for addressing this "problem":

• Option 1: Amend the open meeting law to say: "Nothing contained in this Act shall preclude an individual legislator from meeting with colleagues to build support for, gather consensus toward, or solicit cosigner for or against proposed legislation or a committee report, nor shall a gathering of members in private to discuss strategy or ascertain the level of support for an item before or coming before the body constitute a violation of this act. The term quorum shall not apply to such gatherings."

• Option 2: Delete from the law the phrase, "No quorum of a governmental body shall meet in private for the purpose of deciding on or deliberating toward a decision on any matter except as provided by this section," and then add language redefining the word "meeting" so that it would not apply to "deliberative exchanges, verbal or otherwise, between elected officials, singularly or collectively, seeking support for, building consensus toward or devising strategies to support or defeat legislation, or any other matter that may come before the body."

• The final recommendation -- one the report calls "the ideal arrangement" -- would be to amend the open meeting law to exempt from its coverage "local legislative bodies." In other words, just let the city council meet in private as much as it wants.
  

The Boston Herald's editorial is square on point when it refers to this report as arrogant and insulting. A Boston City Council committee was scheduled to discuss it yesterday. I have not heard what came out of that meeting. Let us hope that the councilors sent this report straight to the circular file. Yes, we need reform of the open meeting law in this state. But we need reform that strengthens and protects the public's right to know, not "reform" that protects politicians from public scrutiny.

Read the report and decide for yourself: remedialresponse.pdf.

Podcast: MBTA v. Anderson

It all started when three MIT students put together a presentation for their network security class at MIT about their findings regarding the security vulnerabilities of the Massachusetts Bay Transportation Authority's CharlieCard fare-pass system. Just as the students were about to present their findings at DEFCON, the MBTA went to federal court and won a gag order preventing them from speaking.

The case raises many issues of free speech and computer law. On this week's installment of our legal-affairs podcast Lawyer2Lawyer, we discuss these issues with our guests Tuna Chaterjee, a fellow at the Berkman Center for Internet Law and Society and a staff attorney with the Citizen Media Law Project, and Marc Randazza, First Amendment attorney with the Florida law Weston, Garrou, Walters & Mooney and author of the blog The Legal Satyricon.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Looking for Lawyer2Lawyer Listeners

Are you a listener to our legal-affairs podcast Lawyer2Lawyer? If so, we'd like to have you as a guest on a special program to mark our third anniversary later this month. We know you're out there -- our podcast last month had more than 40,000 downloads. For our anniversary show, we'd like to learn more about the people who listen, whatever their backgrounds and wherever in the world they reside. If you're interested, drop us a note at lawyer2lawyer-AT-legaltalknetwork.com. (Feel free to copy me at ambrogi-AT-gmail.com.)

Podcast: Legendary Lawyer Gerry Spence

Legendary trial lawyer Gerry Spence is our special guest this week on the legal-affairs podcast Lawyer2Lawyer. Spence came to national prominence for handling the Karen Silkwood case and was most recently in the news for winning an acquittal for Michigan lawyer Geoffrey Fieger. He has never lost a criminal case and has not lost a civil case since 1969. Recently, Spence launched his own blog. Join my cohost J. Craig Williams and me as we speak with Spence about his career, his cases and his blogging.

Listen to our download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Mass. Shield Bill Fizzles in Legislature

Yesterday, The Patriot Ledger carried a story on the apparent death of a reporters' shield bill in Massachusetts.

"The effort to pass a shield law in Massachusetts offering protections to journalists and their anonymous sources was declared dead by its supporters on Monday.

"The bill would have put Massachusetts among 34 other states and the District of Columbia that have shield laws. Three days remain before the Legislature adjourns from formal session on Thursday night, and the bill has not emerged from the judiciary committee."

I was part of the ad hoc group advocating for this bill, which was spearheaded by Charles Kravetz, president of New England Cable News, and joined by a cross-section of print and broadcast media representatives. It seemed for a time that the bill had a good chance of at least making it out of committee and to the floor for a vote, but with the formal session ending tomorrow, that no longer seems likely. The legislature remains in informal session through the end of December, so it is possible something could still happen, just not, it now appears, likely.

Boston Approves New Newsrack Ordinance

The Boston City Council today voted to approve a significant overhaul of the city's ordinance governing the placement of newsracks. The most significant change is in the fees newspapers must pay. Under the prior ordinance, newspapers paid a one-time registration fee of $150. Now, they will be required to pay an annual registration fee of $300 plus annual fees of $25 per box. The new ordinance must be signed by the mayor before becoming law and then will take effect after 150 days.

The ordinance consolidates newsrack oversight and enforcement within the city's public works department and creates a system for electronically tagging and monitoring newsracks. It allows the commissioner of public works to designate locations as high-traffic areas and limit the number of newsracks in such areas. In areas where the numbers of newsracks are limited, eligibility to place boxes will go to newspapers on a first-come, first-served basis.

Here is a copy of the ordinance approved today (PDF): Boston Newsracks Ordinance 07 30 2008.

My Column Wins National Press Award

Indulge me as I blow my own horn. The American Society of Business Publication Editors this week awarded me its national silver award for best contributed column in a publication with a circulation under 80,000. I received the award for the "Web Watch" column I write for the magazine Law Technology News, an ALM publication.

ASBPE announced its national award winners July 24 as part of its national editorial conference in Kansas City, Mo. My award is listed on the page of editorial award winners. This is the second award for my Web Watch column, which in 2006 won a Silver Tabbie Award for best regular column from Trade Association Business Publications International.

Podcast: Viacom v. YouTube v. Privacy

A $1 billion lawsuit by Viacom accuses Google's video-sharing Web site, YouTube, of violating its copyrights. Last week, Google and Viacom reached an agreement to allow Google to mask user information from records before handing them over to Viacom. On this week's legal-affairs podcast Lawyer2Lawyer, my co-host J. Craig Williams and I discuss the case with guests Kevin A. Thompson, an attorney with the Chicago firm Davis McGrath LLC, and Lauren Gelman, executive director of Stanford Law School's Center for Internet and Society. We discuss questions of privacy and piracy raised by the case and look at the lawsuit's broader implications.

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

Judge Backs Schools in Open Meeting Case

The MetroWest Daily News reports that a Massachusetts Superior Court judge has ruled for the Wayland School Committee in an open meeting law case challenging the discussion in executive session of the school superintendent:

"A Middlesex Superior Court judge has ruled the Wayland School Committee did not violate the state's Open Meeting Law in 2004 by discussing Superintendent Gary Burton's evaluation in executive session.

"In a decision dated July 2, Judge Leila Kern said committee members were authorized to discuss Burton's evaluation behind closed doors because the discussion was directly tied to the superintendent's contract and salary."

Revised Guide to Mass. Court Records

The District Court Department of the Massachusetts courts has issued a revised version of its Guide to Public Access, Sealing & Expungement of District Court Records. The blog Massachusetts Law Updates says of it:

"This is a publication we have long loved in the law libraries for its clarity in explaining which court records are available to the public and which are not. Unfortunately, it does not explain the process of access, and what information the researcher needs to provide in order to access records. The sections of sealing and expungement are also clearly written, well annotated, and include forms."

Podcast: Zittrain on the Future of the Internet

Unless something is done to change its course, the future of the Internet, as Jonathan Zittrain sees it, is one of far less innovation and far more -- and far more ominous -- control. Zittrain, who just became a tenured professor at Harvard Law School, discusses his book, The Future of the Internet — And How to Stop It, on this week's episode of the legal-affairs podcast Lawyer2Lawyer.

Zittrain discusses his book, the field of Cyberlaw and his post at Harvard. You can listen to or download the show from this page. As always, you can keep up to date with all Lawyer2Lawyer programs by subscribing via RSS or using iTunes.

Boston Proposes Hike in Newsrack Fees

I testified Monday at a Boston City Council hearing on an proposed overhaul to Boston's newsrack ordinance. Jessica Heslam at the Boston Herald covered the hearing and has this report: Menino pushes plan to hike fees for city’s news boxes. It was also picked up by Editor & Publisher.

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.