Considerations

It’s been a while since I took media law in col­lege, but I seem to remem­ber that any prior restraint is a vio­la­tion of the First Amend­ment:

Yes­ter­day after­noon, Suf­folk Supe­rior Court Judge Merita Hop­kins barred WHDH-TV (Chan­nel 7) from report­ing on find­ings from the autop­sies, say­ing autopsy results are exempt from dis­clo­sure under state pub­lic records law and can only be released with per­mis­sion from next of kin. The sta­tion informed Hop­kins that it would appeal the rul­ing to a sin­gle jus­tice of the Supreme Judi­cial Court today, the judge’s clerk said.

The Boston fire­fight­ers’ union sought the injunc­tion from the judge after learn­ing yes­ter­day morn­ing that the tele­vi­sion sta­tion intended to report on the autopsy findings.

Paul Hynes, the lawyer for the union, said that the fam­i­lies of Cahill and Payne had not seen the autopsy results and that it would pain them to learn about the find­ings on tele­vi­sion. He also said that the law is unam­bigu­ous and that WHDH had to have bro­ken it to obtain the findings.

“There’s no way Chan­nel 7 could have accessed these reports legally,” said Hynes, who char­ac­ter­ized the issue as one about pri­vacy rights. The state’s pub­lic records law says that only spouses and next of kin, agen­cies inves­ti­gat­ing a death, and par­ties in civil court cases are legally enti­tled to obtain autopsy reports. Even then, their release is sub­ject to the med­ical examiner’s discretion.

This is com­pletely unac­cept­able. The Nixon admin­is­tra­tion could not stop The New York Times from pub­lish­ing the Pen­ta­gon Papers – and that was seen as a poten­tial threat to national secu­rity, not just to a family’s feel­ings. The gov­ern­ment can­not pre­vent a media out­let from pub­lish­ing any­thing, even if the infor­ma­tion was gained ille­gally. (How­ever, that does not mean that a media out­let would not face the con­se­quences of pub­lish­ing infor­ma­tion — like libel or slan­der lawsuits.)

I won­der what’s really going on. I’m guess­ing that the union got the judge on its side some­how. The Supreme Judi­cial Court, if it has any integrity, will strike the orig­i­nal rul­ing down quickly. But a ques­tion remains: Why didn’t Chan­nel 7 just ignore the rul­ing and air the story? That’s what I would have done.

Else­where: Dan Kennedy, Jes­sica Hes­lam, and Uni­ver­sal Hub react.

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1. Redun­dant, Oppressed Men
2. More on Iran
3. A Good Day for Civil Liberties
4. Print Media
5. CNN is Back — Perhaps