June 28, 2007
Internet video post is upheld on appeal
By Richard Nangle TELEGRAM & GAZETTE STAFF
A federal judge’s ruling that a Leominster woman could
continue to post a video of a state police arrest on her Web site has been
upheld by the U.S. Court of Appeals for the First Circuit in a case that
attracted the attention of the American Civil Liberties Union.
The case moved to the First Circuit last summer with then-Attorney General
Thomas F. Reilly contending that U.S. District Judge F. Dennis Saylor IV erred
when he extended a restraining order that bars state police from forcing Mary T.
Jean to take the videotaped arrest of Paul Pechonis of Northboro off her
www.conte2006.com
Web site. Had Ms. Jean been convicted of unlawfully posting the video, she would
have faced up to two years in prison.
In his April 2006 ruling, Judge Saylor cited the 2001 U.S. Supreme Court ruling
on Bartnicki v. Vopper upholding the right of someone to publish information if
they received it legally, even if the person believed the original source of the
information was illegal.
“We conclude that the government interests in preserving privacy and deterring
illegal interceptions are less compelling in this case than in Bartnicki, and
Jean’s circumstances are otherwise materially indistinguishable from those of
the defendants in Bartnicki, whose publication of an illegally intercepted tape
was protected by the First Amendment,” wrote First Circuit Judge Kermit V. Lipez.
“Jean’s publication of the recording on her website is thus entitled to the same
First Amendment protection. Consequently, we agree with the district court that
Jean has a reasonable likelihood of success on the merits of her suit for a
permanent injunction. The district court’s decision to grant Jean’s request for
a preliminary injunction is affirmed.”
The state has 30 days from the June 22 date of the
ruling to appeal to the U.S. Supreme Court. “I suppose the next step would be to
see if the state decides to appeal. And if they do we will be involved again,
obviously,” said Ronal C. Madnick, director of the ACLU Worcester chapter. “The
court felt the public interest outweighs any interests of privacy.”
“We are reviewing the opinion,” said Harry Pierre, deputy press secretary for
Attorney General Martha Coakley.
Ms. Jean is represented by John Reinstein of the Massachusetts ACLU and Eric B.
Hermanson of the Boston law firm Choate, Hall & Stewart LLP. She has testified
that she did not know Mr. Pechonis until he gave her the recording after he
found her Web site online.
Mr. Pechonis maintains he was unaware at the time of the arrest that a camera in
his house was activated and recording the state police who appear in the video
to search his home, without presenting a warrant, before arresting him in
September 2005.
In his April 2006 ruling in favor of Ms. Jean, Judge Saylor cited not only
Bartnicki but a Washington, D.C., case in which he said the D.C. circuit judges
“wrongly decided” in the case of U.S. Rep. James A. McDermott, D-Washington, who
was found to have violated federal law when he gave reporters a recording of a
1996 telephone call that involved then-House Speaker Newt L. Gingrich, U.S. Rep.
John A. Boehner, an Ohio Republican who is now House minority leader, and
others.
Mr. McDermott was ordered to pay Mr. Boehner about $700,000 in damages, most of
which covered legal costs. A Florida couple has pleaded guilty to making the
tape and providing it to Mr. McDermott, who has admitted giving it to the news
media.
Ms. Jean posted the video on her Web site in January and state police ordered
her to remove it in a Feb. 14 letter. State police sent Ms. Jean a letter that
read in part, “Be advised that this secret, unauthorized audio/video recording
is in violation of M.G.L. c.272, 99 and subject to prosecution as a felony.”
Richard Nangle can be reached by e-mail at
rnangle@telegram.com.
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