Aug 17, 2006
Reillys office says judge erred in allowing videotape
By Richard Nangle TELEGRAM & GAZETTE STAFF
rnangle@telegram.com
Attorney General Thomas F. Reillys office claims a federal court judge erred by extending a restraining order that prevents state police from forcing a Leominster woman to remove a videotaped arrest of a Northboro man from her Web site.
In a brief filed last week with the U.S. Court of Appeals for the First Circuit, the attorney generals office said Judge R. Dennis Saylor IV based his ruling on two important First Amendment cases that he misinterpreted.
On the basis of those errors, the judge erroneously found that the plaintiff has shown that she is entitled to First Amendment protection and therefore has a likelihood of success on the merits, Assistant Attorney General Ronald F. Kehoe wrote.
Mr. Kehoe said Mary T. Jean, who posted the video on her Conte2006 Web site, knowingly obtained an illegal tape in violation of state law.
Ms. Jeans lawyers will respond to the states brief within a few weeks. She is represented by the American Civil Liberties Union of Massachusetts and two lawyers with the Boston law firm of Choate Hall & Stewart. The filing deadline is Sept. 11.
Ms. Jean has testified that she did not know the Northboro man, Paul Pechonis, who made the videotape in September, 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 to search his home before arresting him.
In his April ruling, Judge Saylor said the D.C. circuit judges wrongly decided the case of U.S. Rep. James A. McDermott, a Washington Democrat, who was found to have violated federal law when he gave reporters a recording of a telephone call that included U.S. Rep. John A. Boehner, an Ohio Republican who is now House Majority Leader. Judge Saylor cited the 2001 U.S. Supreme Court Bartnicki v. Vopper case upholding the right of someone to publish information if they received it legally, even if the person believes the original source of the information was illegal.
Mr. McDermott was ordered to pay Mr. Boehner about $700,000 in damages, most of which covered legal costs. The recorded call, from 1996, involved then-House Speaker Newt Gingrich and Mr. Boehner, among others, and was recorded by a third party. Mr. McDermotts lawyers called the D.C. circuit panels ruling unsound and unworkable. 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. Mr. McDermotts lawyers cited Judge Saylors ruling in the Jean case, calling it a Boehner-style lawsuit. Afterward, the full nine-member Appeals Court agreed to hear the Boehner case.But Mr. Reillys office contends the Boehner case ought to stand as is: In Boehner, the court distinguished Bartnicki because the disseminator seeking First Amendment protection had dealt directly with the interceptor, had the present knowledge that the interception had been unlawful, and participated in the interceptors unlawful dissemination of the tape. The Supreme Court foreshadowed this distinction in Bartnicki, Mr. Kehoe wrote.
This appeal is based on the state police concerns that the audio portion of the video was illegally recorded and obtained without their consent in violation of state law, Reilly spokesman Terence Burke said.
John Reinstein, legal director for the ACLU in Massachusetts, said he expects the brief Ms. Jeans legal team files will answer the states appeal.
In February, Judge Saylor issued a temporary restraining order allowing Ms. Jean to keep the video on the Web site until April 7. She posted the video in January and state police ordered her to remove it in a Feb. 14 letter. But Ms. Jean obtained a temporary restraining order on Feb. 17 that was later extended.
State police had 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.
