Posts Tagged ‘massachusetts’

New Booklet on Citizen Journalism Law in Massachusetts

Wednesday, May 15th, 2013

Newsgathering in Massachusetts coverHarvard Law School’s Digital Media Law Project and Cyberlaw Clinic have released a booklet called Newsgathering in Massachusetts, available as free-to-download pdf.

It’s an information-packed reference tailor-made for citizen journalists, and it includes coverage of
open meeting laws, public records laws, laws regarding access to courts, and laws regarding protection of anonymous sources.

Massachusetts is an especially interesting state for this area of the law. The Boston-born case of Glik v. Cunniffe, discussed in the booklet, is one of the most important citizen-journalist cases to come down the turnpike in the digital era. In that case, a Simon Glik was arrested in Boston Common for filming the police making an arrest of a homeless man. With the help of the ACLU, he got the U.S. First Circuit Court of Appeals to recognize a First Amendment right to videotape in public places.

Kudos to DMLP and the Cyberlaw Clinic for putting this together.

Snowed Over by a Driving Ban?

Sunday, February 10th, 2013

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Blizzard of Blog Law

Friday, February 8th, 2013

As the 2012 superblizzard hits New England, Massachusetts Governor Deval Patrick has issued an executive order banning motor vehicle traffic in the state.

But among the exceptions – along with the police, firefighters, healthcare workers – is the “news media.”

So, does that mean bloggers and citizen journalists can drive right now in Massachusetts? Are they news media?

The executive order – No. 543 [pdf with signature] – does not define “news media.” So should we interpret that to include only newspaper, television, and radio, or bloggers and independent journalists as well? The stakes are high. The Milford Daily News reports that violations of the ban can be punished with a year in jail.

By the way, the order raises a general constitutional question regarding the unenumerated, but court-recognized, right to travel. I am sure that the Commonwealth of Massachusetts would argue that preventing accidents during Snowmaggedon is a compelling government interest and the travel ban is narrowly tailored to serve those ends, so the order would survive whatever constitutional scrutiny put to it.

But I am not so sure. If the travel ban were held to require strict-scrutiny analysis, then a state-wide ban of indefinite duration seems to me not to be narrowly tailored.

When you scrutinize the details, the order seems not to make a lot of sense. Here is the full list of exemptions under the order. Notice anything odd?

  • public safety vehicles and public safety workers, including contract personnel
  • public works vehicles and public works workers, including contract personnel; government officials conducting official business
  • utility company vehicles and utility workers
  • healthcare workers who must travel to and from work in order to provide essential health services
  • news media
  • travel necessary to maintain and deliver critical private sector services such as energy, fuel supplies and delivery, financial systems and the delivery of critical commodities
  • travel to support business operations that provide critical services to the public, including gasoline stations, food stores and hardware stores

Why is travel allowed for gas-station workers if almost no one will need gas since nearly all vehicles are banned?

And the hardware store thing is strange as well. So, hardware stores will be able to have the employees they need to stay open – but no one can drive to the hardware stores. Granted, a few people might be within walking distance of one. But then, what kind of hardware do you need in the middle of a blizzard? I get that there’s a need for plywood before a hurricane hits, but what do you need with hardware during a blizzard?

Finally, I have to say I find it a bit funny that the web-version of the order refers to Governor Patrick as “His Excellency.” I didn’t know anyone in the U.S. used that title. To be fair, Massachusetts has a constitution older than the U.S. Constitution. But still, “His Excellency” seems a little needlessly eccentric.

Trial of Accused Terrorist Blogger Tarek Mehanna Set to Open Today

Thursday, October 27th, 2011

Tarke Mehanna forward mugshotAccused terrorist blogger Tarek Mehanna (Image: Sudbury Police Department.)

Opening statements are expected to begin today in the trial of Tarek Mehanna on terrorism-related charges stemming from alleged support for Al Qaida.

Federal prosecutors say the 29-year-old, born in Pittsburgh and raised in Boston, aided Al Qaida by promoting the organization’s cause on his blog. Specifically, prosecutors say he translated into English distributed online Al Qaida texts originally written in Arabic.

Mehanna is asserting the First Amendment in defense. His lawyers argue that his speech is constitutionally protected, since it was not done in coordination with a terrorist organization. They have sought from the judge a jury instruction on constitutional free-expression rights.

Mehanna faces life in prison if convicted.

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Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!

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Artie Can Now Meow a Sigh of Relief

Thursday, October 7th, 2010

A LAWSUIT THAT GAVE YOU PAWS: Artie, the Boston-based blogging cat, is the beneficiary of the confidential settlement of a federal lawsuit over the reposting of a newspaper article. Eight lives and counting.

The bizarre Artiegate lawsuit is over. (BLB: Purr-loined Story Gets Cat Blog Sued)

Some months ago the Las Vegas Review-Journal, through its legal henchman Righthaven, sued Allegra Wong of Boston over her blog, written from the perspective of her cat, Artie, which allegedly reposted an LVRJ story about a fire at a bird sanctuary.

After bashing Wong, who is, or was, unemployed, with a claim for $75,000, Righthaven has now agreed to dismiss the matter pursuant to  a confidential settlement, as reported by Steve Green in the Las Vegas Sun. (Look at the last few paragraphs of the story.)

I’m guessing that something like $20 bucks changed hands. Maybe zero. The writing was on the wall that the court was looking to give Righthaven the absolute minimum amount of damages possible.

It’s too bad that the settlement is confidential, because I can imagine it was, for Righthaven, embarrassingly low. But I’m happy for Ms. Wong and Artie.

Disgraced Professor Sues Alumni Blog

Wednesday, September 15th, 2010

Charging defamation and invasion of privacy, Bernard Moore, a former visiting professor at Williams College, has sued David Kane, the founder of EphBlog, according to a story from today’s Berkshire Eagle of Massachusetts.

EphBlog is a website run by Williams College alumni that focuses on their alma mater. It is not officially affiliated with the western Massachusetts liberal arts college.

Moore does not come to the lawsuit with a stellar rep. The political science teacher was dismissed mid-semester after pleading guilty to fraud charges, including student-aid fraud. He was also previously convicted of credit card fraud in 1987, according to a report on Moore’s plea in the Williams Record.

Moore (née Ernest B. Moore) is seeking $500,000 in compensatory damages plus $2 million in punitive damages, along with an injunction.

When I checked, I found material about Moore still up on the EphBlog site, although I couldn’t find the passage quoted by the paper as a basis for the suit.

One thing to watch out for in this case is a defense mounted on the idea that Moore is “libel proof.” In defamation law, a plaintiff who is libel proof has such a tarnished reputation, nothing more can be done to destroy it. Theoretically then, even false and defamatory statements about a libel-proof person cannot give rise to liability, since the alleged victim cannot prove that any damage to his or her reputation was caused by the alleged libel. The paper quotes the complaint as stating:

Kane’s public comments included false statements that would tend to expose Dr. Moore to public ridicule and tend to make other[s] less likely to associate and do business with Dr. Moore …

You can see what the possible problem is for Moore. The defense could argue that Moore’s exposure to public ridicule and difficulty in doing business with others – to the extent such facts are proved – cannot be traced to any allegedly defamatory statements made by the defendant.

Honestly, it is a little hard to imagine how an unofficial alumni blog could do half-a-million dollars in actual damage to the reputation of someone in Moore’s position.

Hopefully EphBlog will post court documents and keep us apprised of the litigation.

James Rainey from the LA Times on Artiegate

Thursday, June 10th, 2010

James Rainey has written a column in the Los Angeles Times on the Las Vegas Review Journal’s federal court fight against a Boston-based blogging cat and the humans who apparently lent the cat a computer. The copyright suit ensued after the blog reposted an LVRJ story about a fire at a bird sanctuary. (My original post on Artiegate is here.)

“The newspaper people had me pretty much in their corner until they went after the cat people,” Rainey writes.

For the column, Rainey spoke with the Review Journal’s in-house lawyer, and Rainey hints that the LVRJ’s lawyer, who apparently is not involved in the litigation, may have found the lawsuit against Artie’s humans a bit uncomfortable:

The paper’s in-house counsel, Hinueber, seemed to have a sense that his paper effectively had blasted a small tabby with a howitzer. He didn’t promise to drop the suit, but offered: “I just learned about the filing on the cat thing. I’m going to talk to [Righthaven] about that.”

Righthaven is the plaintiff in the lawsuit. Righthaven acquires copyrights to articles from the Review Journal before filing suit against the alleged infringers.

Purr-loined Story Gets Cat Blog Sued

Tuesday, June 8th, 2010

ALLEGED COPYCAT: Artie, a cat living in Boston, Mass., is the supposed author of a blog that has been sued for reposting a newspaper story about a bird sanctuary.

The Las Vegas Sun reports that its rival newspaper, the Las Vegas Review Journal, has partnered with a company called Righthaven LLC to sue bloggers and others for copyright infringement for reposting Review Journal stories, or portions of stories, on the web.

A total of 34 defendants have been sued in such suits, according to the Sun, the latest group of which includes Allegra and Emerson Wong of Boston, Mass., who have a noncommercial blog about cats: City Feline Blog, written from the perspective of a cat.

Righthaven, the plaintiff in the suits, apparently finds Review Journal stories reposted elsewhere on the web, acquires the copyrights from the Review Journal, and then files suit against the reposters.

The Sun reports that the complaints, filed in federal court in Las Vegas, have generally sought $75,000 in damages, and at least four of the lawsuits have been settled. The amount of the settlement for one of the lawsuits is known: NORML – the National Organization for the Reform of Marijuana Laws – agreed to pay $2,185 to have their action dismissed.

According to the Sun’s review of the court filing, the amount of $2,185  was arrived at by NORML by calculating the maximum amount of the Review Journal’s lost revenue – based on the reposted story’s visitors and the Review Journal’s news archive access fee, and then tripling that amount. The Sun pointed out that NORML’s attorneys’ fees to that point must have easily exceeded the settlement amount. I agree that seems likely.

The NORML filing included this observation: “If Righthaven does not accept this offer, Righthaven may become obligated to pay NORML’s costs incurred after the making of this offer[.]”

I’ll note that with statutory damages, it may well have been possible for the court to award a recovery for Righthaven far in excess of $2,185. Though such a sum might well have been highly unlikely. NORML’s tactic appears then to have been to offer a high nuisance value settlement and then transfer the risk for litigation costs to Righthaven for rejecting the offer and rolling the dice to try to obtain a higher dollar amount.

The Review Journal commented on the lawsuits in their own blog post from the publisher: “Copyright theft: We’re not taking it anymore.”

In a twist, the Las Vegas Sun has, themselves, reposted the bird sanctuary story by hosting a pdf of Exhibit 1 to the complaint against the Wongs.

We’ll be waiting to see if Righthaven takes the bait and sues the Sun.

Blogs and Open Meeting Laws

Friday, June 4th, 2010

Massachusetts lawyer Robert J. Ambrogi at Media Law blog asks: “Does A Public Official’s Blog Violate the Open Meeting Law?

His answer: Maybe

Martygate Questions Grow

Friday, April 30th, 2010

A blog commenter named “Marty” left comments on the MySouthborough.com blog last fall that upset someone in the town government of Southborough, Mass. The comments apparently related to the hiring of a new police chief.

Since then, it has been revealed that the town has been mulling legal action over the blog comments, and on April 22 a FOIA request turned up evidence that the town had incurred over $3,000 in legal bills for investigating the identity of “Marty.” (MySouthborough on this.)

The latest is that Selectman Sal Giorlandino won’t say whether an investigation of eight town workers was or was not related to the Marty comments. (Metrowest Daily News, MySouthborough)

The controversy appears to derive from a September 21, 2009 blog post by Susan called “Open discussion thread: Ask questions, share opinions.” Two comments by “Marty” for that post are currently marked as “removed at the commenter’s request.”

Robert J. Ambrogi on Media Law blog offered some commentary on the case on April 1, 2010.