By Harvey Silverglate 

The Massachusetts judiciary – and as a result, the people of the Commonwealth of Massachusetts – are about to lose one of liberty’s most effective and reliable friends. But just because state Superior Court Judge Isaac Borenstein will retire from his life-tenured position on the state’s trial court on September 12^th doesn’t mean that he will disappear altogether from the battle for freedom, decency, and fairness. Instead, he plans to conclude his 22 years of service on the bench by returning, at age 58, to a law practice emphasizing civil rights and civil liberties cases. 

Judge Borenstein’s departure from the bench follows an increasingly typical narrative; he isn’t leaving his judicial post because he’s tired of it. He explained to David Yas of the Massachusetts Lawyers Weekly that he likely would have continued his judicial career for a while but for the fact that his son Simon is a student at Carnegie-Mellon University. Private colleges like Carnegie-Mellon, which costs $52,000 a year, put public servants like Borenstein in the unfortunate and unenviable position of having to decide between providing for their children’s education – and facing financial hardship – and keeping their jobs. This trend is playing out around the country as our courts – both state and federal – continue to suffer judicial flight due to the inadequate salaries given to even our most seasoned judges. (Judge Borenstein and many others on the bench could easily earn in private practice a salary worth several times the $129,694 that he currently earns.) 

While I’ll be sad to see him leave the bench, the realities he faces mean that I can’t fault him for making the decision he did. I hold Borenstein in high regard for his wise and prudent decisions and actions on the bench – which happen to be his claim-to-fame among the local bar members. However, my respect for him is partly rooted in, and was very much enhanced by, his brave and principled decision to grant the defendants’ motion for a new trial in the tortured Amirault case.  

That case, which readers might be familiar with as the “Fells Acres Daycare Case,” was one of the earliest instances of the nationwide sex panic in the early 1980s, where prosecutors, social workers, jurors and many judges believed the testimony of 3 and 4-year-old children who alleged, after being tutored in their stories by cops and social workers, that workers in pre-school day-care centers performed the most astonishing, vile, unbelievable, and often literally physically impossible sexual assaults on them. (The Pulitzer Prize-winning Wall Street Journal columnist Dorothy Rabinowitz ably documented that national panic in her highly-regarded 2003 book, No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of our Times.) The Amiraults had already brought their case up to the Supreme Judicial Court of Massachusetts by that point, but the high court had issued a disgraceful decision penned by then-Justice (now Harvard Law professor) Charles Fried denying them relief on the ground that “finality” was a major judicial value that sometimes had to trump truth and justice. Recognizing the enormity of the injustice done to the three members of the Amirault family accused in that case, and seeking perhaps to do an end-run around Justice Fried’s and the SJC’s ill-considered “finality” ruling, Judge Borenstein later granted the defendants’ third motion for a new trial, though his decision was subsequently overturned -- the second such reversal in the case -- by an obdurate SJC.  

Judge Borenstein’s attempt to do justice for the Amirault family, even in the face of hostility from the state’s highest court, was the right thing to do. I suspect that in the long run – from the standpoint of ethics – it will have longer and more influential impact than the SJC’s misguided reversals of lower courts’ attempts to do justice. Borenstein proved that sometimes there’s more wisdom on the trial bench than at the appellate level of the judicial system. His wisdom and courage will be missed, but I for one, recognizing that he could not stay on the bench much longer, now look forward to his new career as a trial lawyer promoting civil rights, civil liberties, and elementary justice from the other side of the bench.

Last September, Harvey wrote in The Free For All about Star Simpson -- the MIT student who was arrested at Logan Airport for wearing a (prank) sweatshirt displaying a working circuit board connected to a battery -- and predicted that "there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber." Well, this morning's Boston Herald confirmed Harvey's prediction, reporting that the DA's office decided not to pursue the hoax charges because they could not have proven her "intent to cause anxiety, unrest, fear or personal discomfort" -- a necessary element of the crime -- to a jury. Instead, she gets pre-trial probation for the disorderly conduct charge, and prosecutors plan to drop that charge in a year if she completes community service and doesn't get into any more trouble. 

Updated (6/10/08 1:30pm): Readers who access The Free For All through the old site rather than the new site might see this post misattributed below to Wendy Kaminer because of software limitations with the old system. The post was penned by James Tierney, a research assistant for Harvey Silverglate.

A popular viral video making the rounds on the internet shows New York Times columnist Thomas Friedman getting hit with a pie as he begins a speech at Brown University. The Brown Daily Herald reported yesterday that one of the students was taken into custody (but then released) by Brown police, while the second, who calls himself “Captain Custard” and may not have been a Brown student, remains unidentified. (So far, it seems that criminal charges will not be filed, though the identified student, Margaree Little ’08.5, has been referred to the Office of Student Life for disciplinary proceedings.)

The Herald also reported that someone affiliated with the “protest” against Friedman explained to them that “it’s not just Thomas Friedman. It’s what he stands for and what he promotes. It’s a pie in the face of corporate environmentalism and capitalism.”

The First Amendment protects speech – what Friedman was about to engage in when he was attacked – and also protects protesters’ countervailing right to speech, as long as their protest speech is not sufficiently loud or disruptive so as to interfere with the speaker’s ability to continue – the “heckler’s veto.” However, the First Amendment does not protect assault and battery against a speaker, which is what the students’ pie-throwing incident likely would constitute under the law were Friedman to press charges, or were local prosecutors inclined to proceed even against Friedman’s wishes. In addition to the violation of a criminal law, the students’ protest “action” runs contrary to most universities’ – including Brown’s – professed adherence to free speech and academic freedom principles. While it’s unclear what will happen to Little, Brown’s history is instructive, since not every incident of disruption or unlawful interference with free speech has been punished by campus authorities. (In these cases, you’ll often find that the administrators share the political views of the protesters, so their lack of action is a silent ratification of the protesters’ speech.) Several years ago, on campuses across the country – including Brown – students destroyed or stole press runs of student newspapers that contained a politically-incendiary advertisement placed by David Horowitz opposing reparations for slavery. Even though those actions constituted both theft as well as suppression of the newspaper’s free speech rights, few of those incidents resulted in punishment.

Then again, Friedman went on to finish his speech, so it’s not quite the same as these more successful heckler’s vetoes. But censorship of unpopular (to campus radicals) views is not acceptable, so we have to wait and wonder whether Brown will do anything to punish Little. (Of course, we may never hear anything, because so many campus disciplinary proceedings are held in complete secrecy. But that’s a separate issue.) They might do nothing. What is astonishing, and dis-spiriting, to advocates of free speech and academic freedom on our campuses of higher education, is that so many college administrators would not hesitate to publicly penalize a student newspaper or magazine and its staff writers for publishing a mere parody seen as offensive to some social group, but might hesitate to punish a student who engages in assault and battery in order to attack opinions deemed “regressive.” The double-standard that would occur were they to not punish Little would be breath-taking, particularly in an academic community supposedly devoted to the most heightened notions of free speech.

We’ve written about prior restraints before on The Free For All, in the context of a court order that prevented a Boston TV station from broadcasting the results of autopsies of firefighters killed in the line of duty. As we wrote last fall, prior restraints on speech, and especially these kinds of court injunctions limiting publication of something before it’s actually published, are the most drastic form of censorship and are strongly disfavored by the courts – or at least by courts that are reasonably versed in constitutional law.

Because these prior restraints are so generally frowned-upon, it was with some surprise that I read that the Department of Justice has asked a federal judge to silence Kansas physician Stephen Schneider, and his wife Linda, who had attempted to speak out about the highly questionable prosecution against them. According to the Fort Mill Times, the Schneiders are charged with conspiracy, fraud, and a variety of other allegations related to their clinic, which prosecutors are calling a “pill mill.” Even more remarkably, the DOJ, clearly intent on keeping its prosecution – and persecution – of the Schneiders as quiet as possible, is also seeking to hush up the outspoken Siobhan Reynolds, the founder and head of the Pain Relief Network, who has been heroically battling federal drug warriors for years. Reynolds had come to the defense of the Schneiders as part of her larger push against the devastating terror campaign the DOJ has been conducting for decades against doctors who prescribe pain medications to patients who suffer from serious, chronic pain. The Schneiders apparently spoke with the media about their case and about the flimsiness of the allegations against them, which in turn provoked the DOJ into seeking the gag order against them. It appears that the DOJ, unable to withstand public scrutiny of its shameful war on physicians who help people deal with chronic pain, is turning its guns on those who vociferously oppose the reactionary anti-drug agenda of the DOJ – and accordingly dare to inform fellow citizens about the travesty of these prosecutions.

Though courts have the power, under legal ethical rules, to tell lawyers they can’t talk about certain elements of ongoing cases to the media – known as the pretrial publicity rule – presumably in order to avoid influencing the minds of potential members of the jury pool, it’s unclear how they can tell defendants, let alone third party observers like Reynolds (who isn’t a party to the case) what they can and cannot say. Typically, litigants, the press, observers and other commentators cannot be restrained by these kinds of injunctions. I doubt that the judge will be dumb – and reckless – enough to grant a gag order that almost certainly would be reversed on appeal. However, judges, who sometimes view themselves as part of the government “anti-drug” team rather than as neutral arbiters whose job it is to enforce the law, have done stranger things.

Indeed, for these reasons, I would predict that the DOJ would fail in seeking an injunction against anyone other than the lawyers in the case. However, this bizarre strategy by the DOJ does give us some idea of how far out of line the drug war has veered, such that the prosecutors are trying to keep the public from knowing that if their physician is reluctant to treat chronic severe pain, the reason probably lies in Washington.

A report by Boston Globe federal courts reporter Shelley Murphy is as interesting for what it omits as for what it reports.

The story involves what appears to be an allegation that Boston FBI Supervisory Agent Robert Callen either bullied, or harassed, or otherwise acted inappropriately toward an un-named “female federal prosecutor” at a meeting in the federal courthouse in 2006. Callen allegedly came up behind the unnamed prosecutor – who was assigned at the time to the Organized Crime Strike Force – put his arm around her in a headlock, and gave what the Globe article describes as “a Three Stooges-style noogie.”

This office incident – as anyone with an older brother can attest, undoubtedly one of the worst things that can be done to you at a tender young age – led to a year-long investigation and ultimately a recommendation that Callen and two other unnamed agents (let’s call them Curly and Larry) be fired. Of course, the “noogie” itself might not be the grounds for the dismissal recommendation. Rather, investigators from the FBI inspector general’s office concluded that Callen and the two other agents were not truthful when questioned about the incident.

Murphy reveals that her decision not to publish the name of the offended prosecutor was based on a request from Acting U.S. Attorney Michael K. Loucks. However, Murphy apparently learned the victim’s name for the story, and in fact reached the prosecutor, who “now handles drug cases,” by phone.

This instance of the Globe’s skittishness when it comes to publishing “sensitive” information comes on the heels of my recent Boston Phoenix Freedom Watch column. There, I complained about the Globe’s policy of not spelling out the actual four-letter words and other expletives involved in FCC censorship stories, where the actual words are crucial to the legal issues. So yet again I am astounded to see the Globe self-censor and sacrifice truth for style or political correctness – the refusal to publish the name of an alleged victim of harassment while naming the alleged harasser – an especially egregious violation of the public’s right to know since the alleged victim is a public servant and not an ordinary private citizen.

And, while we’re at it, there’s another aspect to the story that is troubling: When regular citizens are caught lying to the feds, the penalty is usually a “false statement” indictment under Title 18, United States Code, Section 1001, which makes it a felony, punishable by five years in prison, to make a “material” misstatement to a federal official. Instead of being indicted, the three FBI agents are heading for mere dismissal even though they didn’t tell the truth when talking to investigators. This is just another aspect of the double standards that more and more characterize our culture.

We’re living in a Three Stooges world.

                                             Harvey Silverglate

The New York Times is reporting that a group from Princeton has developed a way of reading encrypted data off of computer memory by literally freezing the data in place -- with liquid nitrogen -- before the data, in temporary storage, is erased. Private data thieves or government investigators could easily bypass sophisticated cryptographic systems with a cheap can of compressed air, potentially exposing private materials to unauthorized eyes. If the government were to use this technique to get around data security during sneak-and-peek operations, it would raise powerful fourth amendment concerns -- especially in the wake of a recent federal court ruling "that forcing [a] suspect to disclose [his encryption] password would be unconstitutional." (The Volokh Conspiracy has a good discussion of that ruling here.) Of course, the government theoretically has as much to fear from this development as citizens do -- at least where the computer memory is physically accessible -- since the bypass is uncommonly cheap and easy.

    This past weekend, my research assistant James Tierney and I published an op-ed in the Massachusetts Lawyers Weekly about the dubious arrest and prosecution of local attorney Simon Glik under the state "wiretapping" statute. The op-ed (and the news article that David Frank of the Lawyers Weekly wrote to accompany our piece) lays out the facts in some detail, but here's a summary: 

    While walking down Tremont Street, Boston, last October, Glik stopped when he saw police officers arresting a teenaged boy in what he later found out to be a drug arrest. Glik says that at the time he thought the cops were being overly harsh, so he pulled out his cellphone camera and, from a distance of about ten feet, began recording video (and audio) of the arrest. Holding the cellphone at arms length, and at eye level, Glik slowly walked back and forth recording the incident until the cops noticed him and determined that Glik was recording audio. At that point, they arrested him and sought a complaint for wiretapping, disorderly conduct, and aiding the escape of a prisoner from an officer.

    Why "wiretapping"? As we explain in the op-ed, the Massachusetts statute criminalizing unauthorized electronic eavesdropping and establishing procedures for lawful government wiretaps, 272 M.G.L. § 99, is vaguely worded and covers the secretive audio recording of oral communications -- in other words, speech. In 2001, Massachusetts' Supreme Judicial Court issued an opinion in Commonwealth v. Hyde upholding the wiretap conviction of a motorist who surreptitiously recorded his interaction with a cop during a traffic stop.

    But § 99 and Hyde both explicitly name secrecy as one element of the wiretapping crime. As we note in the op-ed, “[e]ven the Hyde majority explained that recording an interaction with the police would not have violated the law had ‘the defendant … held the tape recorder in plain sight.’ That Glik did nothing wrong, from either a legal or ethical standpoint, seems clear to us.”

    Glik appeared in Boston Municipal Court on Tuesday morning for a motions hearing. His attorney, June Jensen of Wayland, Massachusetts, argued a motion to dismiss all three charges. (The Commonwealth agreed to drop the charge for aiding the escape of a prisoner, since the term prisoner facially did not apply to the fact pattern.) Relying on Massachusetts case law and statutory text, she argued that § 99 required not just an element of secrecy but also that the recording actually have captured intelligible speech or voices. Furthermore, she argued that according to case law, 272 M.G.L. § 53, which proscribes disorderly conduct, is not triggered when there is a legitimate purpose behind the act that caused the disturbance. “When the purpose of the conduct is to record an arrest,” Jensen argued, “the conduct is legitimate.”

    In turn, the Commonwealth put up embarrassingly weak, convoluted, and non-responsive rebuttals to Jensen’s arguments. With regard to the wiretapping charge, even though Glik held the cellphone out at arm’s length and at eye level, the cops had their backs to Glik, so the recording was “secret” until they turned around and saw the camera, according to the prosecutor. Similarly, the Commonwealth argued that it didn’t matter that the police report did not contain any information to demonstrate that any speech was recorded – nor indeed that any recording had been made at all – since it was sufficient that Glik told the cops that he was recording audio. The judge posed a hypothetical: had the judge himself stopped on the street to record the arrest, and had he been holding up a cellphone that had no camera or technical ability to record anything, but had told the cops that he was recording audio – the only fact relied upon by the Commonwealth in its complaint against Glik – would the Judge be liable for wiretapping under the Commonwealth’s theory? Well, the prosecutor said, yes.

    As for the disorderly conduct charge, which requires that “the defendant either intended or recklessly created … a risk of public inconvenience, annoyance or alarm,” Alegata v. Commonwealth, 353 Mass. 287, 304 (1967), the Commonwealth argued that there was probable cause to issue a complaint for disorderly conduct because Glik had annoyed the cops. Police are not the public, of course, so the Commonwealth then argued that because the videotaping had occurred on a busy city street at rush hour, it was reasonable that Glik would have created a public annoyance.

    The judge took the motion under advisement, saying he would decide on the motion in a week’s time, and setting the next hearing date for March 12. If one wishes to know why Massachusetts and Boston find themselves in such woeful financial straits these days, it’s useful to begin by examining how our police officers, prosecutors, and, therefore, judges as well, spend their time. Nonetheless, the civil liberties aspects of this case are considerably more disturbing that the specter of such a senseless waste of the public treasury.

    We will be following the case in the Phoenix and on this blog, so keep an eye out for a report once the judge decides on the motion to dismiss.

    (With thanks to James Tierney for his report of the hearing.)

In this week's Boston Phoenix, Harvey Silverglate writes about how a troubling new obstruction-of-justice statute, and a precedent set in a Connecticut kiddie-porn case, could be used to prosecute the CIA if the government brings obstruction charges related to the destruction of the so-called "torture tapes." Above, Silverglate discusses the statute, the case, and the implications with Boston Phoenix executive editor Peter Kadzis.

READ: Torture-Tapes Template: Bush-administration lawyers could be nailed for their role in destroying evidence in the CIA scandal, thanks to a quiet Connecticut child-porn case. By Harvey Silverglate.

By James F. Tierney

Yesterday, the Supreme Court released its decisions in two important cases about how judges sentence federal criminals: Kimbrough v. United States and Gall v. United States. Taken together, the cases increase individual judges’ discretion in how to sentence crimes, by allowing them to depart from the federal sentencing guidelines, which are “advisory” rather than binding on judges. Kimbrough upheld a lower sentence for crack possession, taking into account the vast and unfair disparity in sentencing between crack and cocaine possession crimes, which often is a distinction drawn on de facto racial lines. Likewise, in Gall, the court explained that although judges should take the guidelines into account when conducting a case-specific analysis, they can set sentences below the guidelines when they think those lighter sentences are more “reasonable.” These decisions are rare good news about the federal government’s drug war: harsh sentences are often much more destructive than the drug use itself. Hopefully, judicial discretion will help people caught in the drug war: as the New York Times reports, “[b]elow-guidelines sentences have been given in 11.9 percent of cases, and above-guideline sentences in 1.6 percent.”

SCOTUSblog has more here.

By James F. Tierney

In the August 15, 2007 Boston Phoenix, Harvey described the criminal case against Powers Fasteners as a likely form of extortion, in which Attorney General Martha Coakley's motive in pursuing the company was to extort civil settlements from it and, more importantly, other companies -- such as contractor Bechtel -- with enough money to buy their way out. The Boston Globe reports this morning that lawyers for Powers Fasteners are asking the judge to dismiss the Powers indictment on the grounds that the Commonwealth's Attorney General cannot be an impartial prosecutor in a criminal case while she is simultaneously seeking money damages in a related civil lawsuit or negotiation. (Yesterday, the Globe reported that the private lawyer whom Coakley appointed to prosecute the case has "run[] up a tab that has already reached nearly $1 million," despite the fact that "even if convicted, the Powers Fasteners glue company faces a maximum penalty of a $1,000 fine.") Is Coakley's zealous pursuit of a conviction against Powers Fasteners solely meant to hasten a multi-million dollar windfall accompanying a civil settlement? We'll be watching the case.

It is all too true that when it comes to questions of constitutional rights, the devil (or the angel, as the case may be) can be in the details. This seems the case with the new Boston Police Department initiative that would allow police officers to visit homes where they receive a tip that a minor might have hidden a gun, or where the parent suspects such and is willing to ask for police intervention. The police would ask the parent to sign a waiver granting them permission to search the home and take the gun away. At first glance the program struck me as laudable in its creativity and fully constitutional because of its voluntary nature, and because of the assurances by the police that no one would be prosecuted for possession of the gun. But upon closer inspection, there are too many unanswered questions about how this program would work in practice, and the ACLU of Massachusetts should be commended for taking the lead in raising these complex questions.

Perhaps the single greatest flaw with the BPD program is that it does not offer unconditional amnesty for firearms found, although the Boston Globe article on the program seems to suggest otherwise. Instead, as Boston NOW has more clearly articulated, the department reserves the right to prosecute if a ballistics test on any gun found indicates that the weapon was used in an unsolved crime.  One can only imagine the grief and regret a parent would feel if his or her child is prosecuted and sent to jail because, in the hopes of protecting the child, the parent encourages police to enter the home and seize a firearm. Similarly, police officials have not done an adequate job of reassuring homeowners that they will turn a blind eye to evidence of any other illegal activity they may discover during their search, such as the presence of illegal drugs. It is absolutely essential that parents understand that prosecution can indeed follow for anything and everything except the actual possession of a gun and that they have a constitutional right to deny police entrance. If parents are being asked to waive their constitutional protection against search and seizure, then that waiver has to be both knowing and voluntary.

Long experience causes me to lack sufficient confidence in Boston Police to make clear that homeowners have a right to deny a search request and to avoid intimidation when arriving on a doorstep. I’m skeptical that parents who do waive the privacy rights attaching to the home will have done so knowing the full implications of such a waiver. This sort of program, which gives police an end run around the age-old search warrant mandate, could become frequently abused because it is so much more convenient and expedient than obtaining a warrant. After all, an anonymous tip is not a sufficient basis for obtaining a search warrant, and so the police should be willing, for the public safety, to grant unconditional assurances that whatever is found in the house will not be used as the basis of a prosecution.

And so, while at first glance this “voluntary” search program has a certain allure to it, Harvard Law Prof Charles J. Ogletree, Jr. is probably correct when he noted in the Globe that “this is a decision that, if approved, the community will come to regret it.”

Once again, the news media faces a “prior restraint against publication” imposed by the courts, yet few in that industry or elsewhere seem to understand the nature and impact of prior restraints and the true threat they pose. Contrary to common belief, prior restraints pose a more serious threat to Sixth Amendment rights (i.e., the right to a jury trial in a criminal cases) than to First Amendment press freedoms. Here’s why.

First, a basic definition: a prior restraint is a court order prohibiting a news reporter or media organization from reporting a particular story or publishing a certain document and, in the process, disclosing information deemed private or classified. In a typical case, publication of the information is prohibited by law (classified national security information, for example, may be protected from disclosure by the espionage laws); in theory, reporters and editors understand that, if they decide to publish, they risk breaking the law. But when the news organization accepts the risk and seeks to publish anyway–either because it believes the statute does not prevent it from publishing the information, or because it believes it has a duty to indulge the public’s right to know–some party may decide to seek a court order preventing publication. That party is often the government, or in some instances a private party, such as the fireman’s union in the imbroglio I describe below.

If the court issues the order, the court essentially says that it has (1) reviewed the statute, (2) reviewed the document about to be published, and (3) decided that, not only is the document covered by the statute, but also that publication would have a seriously deleterious effect on a vital, indeed overriding, public interest. Only if these conditions are met would the court be logically justified in issuing an injunction preventing the news organization from publishing or broadcasting the information.

This does not mean that, in the absence of a prior restraint order issued by the court, the news organization would be free of risk in publishing the information in dispute; instead, publishing it could still constitute a crime and expose the news organization, editors, and reporters to indictment, followed by a criminal jury trial. But the media, in the absence of a prior restraint injunction, would not be in violation of a judge’s order and hence would not be committing the additional crime of “contempt of court” by going ahead and publishing the information. It would be up to a prosecutor to decide whether to indict the media. The judge would have no control over whether a criminal charge is brought, and a jury, not a judge, would sit in judgment of the media at such a trial.

I am always suspicious about gag orders and prior restraints, since there is a great incentive for those with something to hide to use them to silence potentially embarrassing press coverage. In the latest installment of this farcical anti-free-speech campaign, Suffolk Superior Court Judge Merita Hopkins prohibited local television Channel 7–NBC affiliate WHDH-TV–from reporting the autopsy reports concerning two Boston firemen who died in an August blaze at a Chinese restaurant. According to the story recounted in The Boston Globe, and two reports in the Boston Herald, there are indications that one was drunk while the other tested positive for cocaine.

Prior restraints on publications–like the one Judge Hopkins ordered–are constitutional only when imposed for the most urgent of reasons: where there is solid evidence that publication would have an immediate and catastrophic affect on national security, for example. (There are also some limited circumstances where such injunctions are allowed, such as where a copyright violation is about to occur, since the copyright protection is, like the First Amendment, written into the Constitution.) The law on prior restraints is ably set out by a media writer and blogger who understands these things better than most judges and lawyers, Dan Kennedy.

But no media analysts have identified the most pressing concern about Judge Hopkins’ unconstitutional and ill-considered prior restraint injunction, which was properly and predictably overturned by an Appeals Court judge within hours. This abusive use of judicial power would have deprived the news media not only of First Amendment protection, but also of the right to a jury trial as guaranteed by the Sixth Amendment.

A newspaper editor, television producer, or reporter who possesses a document that is not supposed to be publicly available but yet has obtained it through lawful means (in other words, the newspaper was given it by a whistle-blower–who himself might have committed a crime by obtaining and disseminating it–rather than having stolen it) has committed no crime. If the document was clearly and explicitly illegal to publish, however, the newspaper or television station can presumably be criminally charged for violation of a statute prohibiting the publication of medical records, including autopsy reports. That would be done after the fact of publication or airing, when the district attorney could decide whether the action warranted a criminal prosecution. As a result, the news outlet, editor, or reporter would be entitled to a jury trial for the alleged crime. It would be up to the people, as represented by the jury, to decide whether the invasion of privacy outweighed the public's right to know and that the publication therefore merited criminal sanctions. The trial judge would instruct the jury as to the meaning of the statute, but the ultimate verdict would be the jury's.

As John Ellement reports in The Boston Globe, the District Attorney believes that this particular statute does not carry criminal penalties for violators. Accordingly, the news station and other media outlets that have published the autopsy information appear to be in the clear, insofar as a criminal charge is concerned. But assuming for the sake of argument that the district attorney were to bring charges, it is unlikely that 12 out of 12 jurors could be convinced to convict a reporter or editor for publishing a report that is so clearly in the public interest. Since a conviction would require the jury to unanimously agree on a guilty finding, the state would be unlikely to obtain a conviction no matter how many times it tried the case to a jury. Chances are there would be a "hung jury"–a jury that was unable to arrive at a unanimous verdict–nearly every time such a case were tried. And as soon as a jury was unanimous in acquitting, then the "double jeopardy" provision of the Constitution would kick in, and the case could not again be re-tried. In effect, there would likely be "jury nullification" of a silly law that serves to bury an autopsy report showing that firefighters may have died because they were intoxicated while on duty. That sort of information is self-evidently and unequivocally within the public’s right to know, and any law shielding its publication is clearly against the public interest and would not be sympathetically viewed by a jury.

This is how the criminal justice system should normally work. Judge Hopkins, however, circumvented this route, issuing an injunction against broadcast. So if WHDH disobeyed her and published the report, Judge Hopkins could hold the station (and the relevant producer and reporter) in criminal contempt. Under the law of criminal contempt, as enunciated by the United States Supreme Court, a defendant may be tried by a judge, instead of a jury, for criminal contempt provided that the judge imposes a sentence of no more than six months. (See, for example, the Supreme Court cases Lewis v. United States (1996), Duncan v. Louisiana (1968), and Blanton v. North Las Vegas (1989).)

Thus, by proceeding via a prior restraint order, Judge Hopkins made an end-run around the media’s right to a jury trial for its publication of a document that might violate the statute but the publication of which is clearly in the public interest. Judges tend to punish perceived violations of the dignity and power of courts, while citizens tend to focus instead on the public interest. (It’s an interesting aspect not only of separation of powers concepts, but also of human nature.)

A newspaper should have the option to decide, as a matter of civil disobedience, to publish a document that the law deems private, if the newspaper believes that publication is in the public interest and is willing to take the risk. The newspaper and its staffers would then have a right to a jury trial in the event they are charged criminally with violation of the statute. It is an improper violation of the media’s right to a jury trial for a judge to impose a prior restraint in order to usurp the power to convict the reporters and editors, and then to sentence them to up to six months in prison without a jury’s playing any role whatsoever.

Prior restraint injunctions, in other words, are not only an end-run around the First Amendment’s free press provision, but around the Sixth Amendment’s right to a jury trial as well. The profound decision to punish the news media for blowing the whistle on some story or document that the government would rather keep the people from learning about, should reside with the public whose interests are, ultimately, the ones at stake. History has shown that juries are far more reliable in making such judgments in the public interest than are prosecutors or judges–or self-interested public sector unions, for that matter. It is time to abolish the prior restraint injunction in all cases except the most obvious and dangerous national security instances.

The best example of an appropriate exception to the legal presumption against prior restraints was set forth by the Supreme Court in the 1931 case of Near v. Minnesota. As I recount in my book The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999), J. M. Near and his cohorts published a newspaper, the Saturday Press, which in an ongoing series charged that various political and law enforcement officials and power brokers in Minneapolis were part of a conspiracy to protect, rather than to investigate and prosecute, a Jewish racketeer. The state charged that the allegations were “malicious, scandalous and defamatory,” and it sought to “perpetually” stop the publication of future issues of the paper. Minnesota sought this result by enforcement of a state statute that established a procedure to prohibit, as a “public nuisance,” the publication of a “malicious, scandalous and defamatory newspaper, magazine or other periodical.”

The Supreme Court in Near established an almost insuperable obstacle to the issuance of prior injunctions against publication. It provided an example of a situation that might warrant a prior restraint: “in time of war a government might prevent actual obstruction of its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” This came to be called the “troop ship exception” to the rule against prior restraints.

Judge Hopkins apparently did not understand that a television news disclosure that two firefighters might have died because they were under the influence (one of alcohol, the other of cocaine), while on duty at the site of a raging fire, does not fall within the “troop ship exception” to the heavy constitutional presumption against prior restraints. Judge Hopkins, perhaps not trusting a jury to see it her way, decided to short circuit the station’s right to have a jury decide the question, by issuing a prior restraint. In the event the station decided to violate Judge Hopkins’ order, she could have imposed up to a six-month jail sentence for “contempt of court” without ever submitting the criminal contempt charge to a jury. Fortunately, the Appeals Court judge vacated Judge Hopkins’ order, thus protecting not only of the people’s right to know, but the station’s right to have a jury rather than a judge decide the ultimate question of guilt or innocence, were the district attorney to prosecute the station for violating a statute classifying autopsy reports as private medical records.

Will Judge Hopkins now be sent for remedial education in her duties and obligations to defend and protect the Constitution? Probably not. Being a judge, it seems, means never having to say you’re sorry.

(James F. Tierney assisted in researching and preparing this piece. His expert help is gratefully acknowledged.)

Simpson (not to be confused with the mischievous cartoon characters of the same name – although my wife Elsa Dorfman predicts that the case will in fact appear shortly in an episode of “The Simpsons”) triggered a terrorism scare at Logan Airport last week when she appeared at an information booth wearing a sweatshirt with a lit circuit board on the front connected to a 9-volt battery, and carrying a glob of Play-Doh in one hand, according to Boston Herald reporter Maria Szaniszlo, who told me that she actually was shown the “hoax” device. Suffolk County  District Attorney Daniel F. Conley told the Herald that he would seriously consider charging the loopy but reportedly brilliant student with wearing a “hoax device…with the intent to cause anxiety, unrest, fear or discomfort to some person or group of persons.”

            As I told the Herald, while wearing my criminal defense/civil liberties lawyer’s hat, there is no way prosecutors can convince twelve sane jurors that a student, wearing such a sweatshirt with the flashing lights tacked onto the outside rather than hidden underneath her clothing, was actually trying to perpetrate a hoax that she was a suicide bomber. Ms. Szaniszlo, after examining the device, told me that she thought that if she were a passenger and spotted the device, she would have notified airport security. Well, that may be reasonable, I noted, but it is completely unreasonable for trained security personnel to think that this kind of display was a suicide bomber’s vest. I noted that not once in the annals of the history of suicide bombers is there a single instance, to my knowledge, where the bomber wore the device outside rather than underneath his or her clothing. “Yes,” the reporter finally agreed, “I suppose that defeats the whole purpose of trying to sneak the suicide bomb into the airport.” Precisely!

            Once can’t help but be reminded of last year’s terrorism hoax imbroglio, in which police and prosecutors called a virtual red alert over “Aqua Teen Hunger Force” lighted circuit boards placed on bridges and roadways in the Boston area by performance artists Sean Stevens and Peter Berdovsky.  I wrote at the time that it was much ado about nothing, and that no serious Homeland Security or police agent should have reacted as they did at the time. I pointed out that those two defendants, likewise charged under the hoax device statute, would likely be acquitted. Attorney General Martha Coakley, obviously aware that it was not a case she could win, struck a deal that dropped all criminal charges and instead required both men to perform eighty hours of community service.

            Both of these episodes came to mind this past Sunday as I read the lead story in The Boston Sunday Globe “Ideas” section, about the catastrophic social impact of the huge number of citizens, especially young black males, who have done or are doing time in the nation’s penal systems. “Fueled by the war on drugs, ‘three-strike’ laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.” writes Christopher Shea.

            Clearly there are criminals, of all ages, who pose a grave threat to society and should be locked up. But in less clear-cut cases involving young people, like Simpson, or the tens of thousands of young men arrested on drug possession charges every year, one must consider if putting them in jail, and spending precious resources to keep them there, is really for the betterment of our country. This newfound tendency to throw the book at our youth is a reckless one.

It wasn’t always this way. In the early days of my law practice, I represented some very smart MIT students who had figured out a way to make long distance telephone calls while bypassing the phone company’s billing system. It was a real crime, for which they could have actually been convicted (in contrast to the more recent performance artists), and yet, in the end, the phone company decided not to press charges. Instead, it hired the students to work in the company’s security department in order to use their superior skills in order to thwart other technological attacks on the system. The wise disposition did more to enhance the nation’s (and the phone system’s) security than any ill-considered prosecution would have.

If Star Simpson has a half-way decent lawyer, the prosecutors should back off completely. If she decides to take the most risk-averse approach, she might make a deal to be placed on probation, with the charges dismissed at the end of the period. And so the student’s life and career are not likely to be jeopardized by this bit of over-reaction by our rapidly growing national security sector. But we still have to ask two questions: One – why can’t these national security types distinguish a possible terrorist attack from an obvious joke or piece of performance art? And, two – why do we as a society insist on using the criminal justice system to eat our young?