September 23, 2006
Lawyers laud ruling on arrest video: Police ordered Leominster woman to remove footage from Web site
By Richard Nangle
TELEGRAM & GAZETTE STAFF
rnangle@telegram.com
Lawyers for a Leominster woman accused of illegally posting a video of a state police arrest of a Northboro man on her Web site say a federal court judge in Worcester correctly ruled that public interest trumped law enforcement privacy concerns.
In a brief filed with the U.S. Court of Appeals for the First Circuit, the lawyers said a restraining order preventing state police from forcing the removal of the video from Mary T. Jeans Conte 2006 site should stand. The first appeals court date is scheduled for Nov. 6.
Ms. Jean is being represented by John Reinstein of the American Civil Liberties Union of Massachusetts, and Eric B. Hermanson and Sara E. Solfanelli of the Boston law firm Choate, Hall & Stewart LLP.
In the present case, the district court properly concluded that the public interest in publication of a videotape of alleged state police misconduct and public discussion in which Ms. Jean sought to engage, concerning Mr. (Worcester District Attorney John J.) Contes supervision of that state police unit outweighed the relatively minimal expectation of privacy that the state police officers may have had during their warrantless search of Mr. (Paul) Pechonis premises in Northboro, the lawyers said.
Ms. Jeans attempt to expose this police behavior and her related allegations of supervisory negligence against Mr. Conte, a prominent local official whom she maintains a Web site dedicated to criticizing go to the very heart of the First Amendment. They deeply implicate the Supreme Courts profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
Last month, state Attorney General Thomas F. Reillys office contended, in a separate filing, that U.S. District Judge R. Dennis Saylor IV erred when he extended a restraining order that bars state police from forcing Ms. Jean to take the videotaped arrest of Mr. Pechonis off her Web site. The attorney generals brief said the judge misinterpreted two important First Amendment cases on which he based his ruling.
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 Ms. Jean knowingly obtained the illegal videotape of the arrest, which was recorded without the arresting troopers knowledge, in violation of state law.
Ms. Jean 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 ruling in favor of Ms. Jean, Judge Saylor cited 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 majority leader, and others.
Judge Saylor also 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.
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.
The full nine-member Appeals Court has agreed to hear the Boehner case.
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.
Judge Saylor issued a temporary restraining order Feb. 17 allowing her to keep the video on the Web site until April 7. That order was later extended.
Contact Richard Nangle by e-mail at rnangle@telegram.com.
This notice went up on http://www.conte2006.com today. So it seems like the wheels of justice are moving. It will be interesting to see what comes of all of this. Is the AG’s office going to pursue this? Or might they fold before it gets in front of a jundge? Seems we’ll find out by the day before the election. Maybe.
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