Mary Jean, who the 1st Circuit described as “a local political activist in Worcester, Massachusetts” publishes a a website critical of Worcester County District Attorney John Conte (www.conte2006.com). Coincidentally (insert sarcastic sneer here), she wound up the focus of an investigation for the illegal publication of a videotape of police misconduct. Fortunately, she lives in a free state.
In October 2005, Paul Pechonis, a stranger to Jean, contacted her through her website and explained how eight armed Worcester police had stormed his home, arrested him on a misdemeanor charge, and then conducted a warrantless search of his entire home. What was the charge? Pechonis allegedly called for the “resignation or execution” of a judge. Given the latter, I can see the police investigating. I take no position on whether Pechonis broke the law or not. However, the video clearly shows police misconduct during the arrest.
We all know that this kind of thing happens every day. However, in this circumstance, Pechonis had a “nanny-cam” that videotaped the entire episode of police misconduct. He gave it to Jean, who posted it on her website. The police claim that the recording was an illegal surreptitious recording, in violation of Mass. Gen. Laws ch. 272, § 99 (the state wiretap law), and attempted to intimidate her into taking the recording off of her website through a letter from Ann McCarthy, Deputy Legal Counsel for the Massachusetts State Police.
Normally, I would slam McCarthy for such a clearly unconstitutional and unethical act. However, in 2001, the Massachusetts Supreme Court in Commonwealth v. Hyde, 434 Mass. 494 (2001), issued a foul abortion of a decision that upheld the conviction of a motorist under this law who audiotaped police misconduct during a traffic stop. Therefore, I think we must give Ms. McCarthy some benefit of the doubt.
Of course, in Jean v. Mass. State Police, the police went one step further than they did in Commonwealth v. Hyde. They were not prosecuting the man who videotaped the abuse, but were attempting to force Jean to take the video off of her website.
Let me spell this out for anyone who might be a little less than bright. In all fairness, this site is accessible to the public, and 26% of the public still thinks that GWB is doing a good job.
- The police committed misconduct
- Someone got a tape of it
- The police attempted to use force of law to stop the publication of the tape.
Thank goodness that the Federal Courts in Massachusetts are protective of the First Amendment (The State Courts have disappointed me lately).
Jean filed suit in Federal Court to enjoin the police from taking any further steps to suppress her First Amendment right to publish the tape. The District Court found that even if the tape was illegally made, Jean had “obtained the tape lawfully,” and the videotape related to a “matter of public concern.” Based upon that logic, the District Court concluded that the First Amendment likely protected her right to publish this lawfully-obtained tape, and in the absence of an injunction, there would be irreparable harm to Jean’s First Amendment rights. Transcript of hearing here. Injunction here.
Interestingly enough, the District Court specified that the police could continue to investigate whether the tape had been obtained illegally, and if so, if Jean had any liability for its production. In other words, they did not issue a ruling that contradicted Commonwealth v. Hyde. Now that’s too bad, because the Mass. Supreme Court needs to have its hand slapped for that one, but such is life.
Now the Mass. State Police and their counsel went insane and appealed. As a cop and as a lawyer, you put up your hand and vow to “uphold and defend the Constitution.” It is beyond comprehension how anyone who has done so can attempt to suppress the publication of lawfully obtained information of public importance. It’s called an unlawful prior restraint. See New York Times Co. v. United States, 403 U.S. 713 (1971).
Despite the Massachusetts State Police’s attempt to turn the Commonwealth into the Massachusetts Police State, the First Circuit preserved this cornerstone of the Republic – for today. They held that Jean has a reasonable likelihood of success on the merits of her claim that the First Amendment protects the posting of a recording under such circumstances. Consequently, we uphold the preliminary injunction.
Accordingly, if you live in Massachusetts, Maine, New Hampshire, or Rhode Island, rest assured that you can still publish evidence of official misconduct — as long as you obtained it lawfully. Could you imagine if the ruling had been to the contrary? Newspapers could be shuttered by jackbooted thugs attempting to cover up their own misconduct — which they try to do all the time.
Today, I will take my First Circuit license down off the wall and give it a big kiss.
And here is the video. The audio is a little unclear, but you can hear them tell him that he is under arrest for “statements made on the internet.” How that justifies a complete warrantless search of his entire home is beyond me — and apparently beyond the police, which is likely why they don’t want you to see this video.
By the way, if they’d like to stop me from publishing the video too, I will keep my ass nice and clean so that when they kiss it, it is not an entirely unpleasant experience for them.