I have two articles in the March 13, 2008 issue of the Boston Phoenix. In the first, Jan Wolfe and I criticize the ill-advised arrest of performance artist Milan Kohout and follow up on his case, which was dismissed in Massachusetts court. In the second article, I report on newspapers' annoying tendency to censor swear words even when those words are at the core of the story being reported.

I also published an op-ed in the March 15, 2008 issue of the Boston Globe, in which I describe how vague and easily pliable federal statutes have created a situation in which the Department of Justice can concoct a novella-length federal indictment out of disgraced ex-New York Governor Eliot Spitzer's meeting a prostitute in a Washington, D.C. hotel room. Spitzer's vulnerability to federal prosecution, I argue, is part of a larger trend in federal law enforcement that has surprised defendants who have landed in trouble for acts, unlike the act of prostitution in Spitzer’s case, that they reasonably did not believe were intuitively criminal.

    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.