PRIOR RESTRAINT
a case study on
Boston Firefighters Union v. WHDH TV
Suffolk County Superior Court, Civil Action No. 07-4341
Commonwealth of Massachusetts Appeals Court, A.C. 2007-J-455
Key persons mentioned:
Superior Court Judge Merita Hopkins
Appeals Court Judge Andrew Grainger
Boston Firefighters Union, IAFF, Local 718 (Plaintiffs/Appellees)
Paul Hynes, legal counsel
WHDH TV, Channel 7 (Defendants/Appellant)
Victoria Block, reporter
It has been for over 200 years that “congress shall make no law abridging the the freedom of the press,” and it is for a reason that this amendment is the first in the bill of rights. At the heart of every true and working democracy is a self-correcting society free to be critical of itself and its government. The press is guardian of this freedom; without it, the knowledge necessary to demand justice and change is stifled, treading the fine line between democracy and autocracy.
As such, restraints on the freedom of the press pose a great threat to the existence of a democratic society. Prior restraints, in particular, bar the avenues to the public forum that is the hallmark of democracy, by making matters of social importance dangerously unavailable for discussion. The case of Boston Firefighters Union v. WHDH TV is a blaring example of the first amendment at work: it demonstrates how the media plays a crucial role in effecting long-warranted change, and how very rarely can any other law trump the constitutional right to free speech.
Prior restraint can roughly be defined as an act by a government or one of its agencies to prevent the dissemination of information prior to broadcasting or publication by the news media. More commonly referred to as censorship, requests for such bans are rarely granted, except in “extremely compelling circumstances” such as matters of national security -- and even then, the government falls under heavy burden of proof. Motions for injunctions usually concern sensitive matters. The prior restraint injunction sought by the Boston Firefighters Union, local 718, against WHDH TV (Channel 7), is no exception.
On the morning of October 3, 2007, reporters from Channel 7 contacted the Boston Firefighters Department for comment on a story the station was going to report in that evening’s newscast. Reporter Victoria Block had obtained controversial information contained in the autopsy reports of two firefighters who died fighting a restaurant fire in West Roxbury in late August, whose funerals were attended by Gov. Deval Patrick and Sen. John Kerry, as well as thousands of firefighters from across the country.
One, Paul Cahill, was legally intoxicated at the time (with a blood alcohol level three times the legal limit in Massachusetts), while the other, Warren Payne, had traces of cocaine in his system. Learning of Channel 7’s intent to broadcast, the Boston Firefighters’ union and members of the Cahill and Payne families sought a preliminary injunction against the station and quickly obtained an ex parte temporary restraining order, served at 1 p.m. that day
“We struck a nerve,” Block said in a telephone interview. “But they had to do what they had to do, and we had to do what we had to do.”
At 4 p.m, both parties convened with Suffolk County Superior Court Judge Merita Hopkins for case cites. The plaintiff argued, as per Globe Newspaper Company v. Chief Medical Examiner (1986), that Massachusetts public policy “favors confidentiality as to medical data about a person’s body.” Judge Hopkins confirmed that autopsy reports from the medical examiner’s office are “absolutely exempt from disclosure pursuant to public records,” whereby the Chief Medical Examiner is custodian.
The defense argued that they did not hold the autopsy report itself but merely the information contained within the report, which they received from confidential sources without unlawful action on the station’s part, and thus should be allowed to release the information.
But Judge Hopkins ruled that “circumventing [the legal] process through confidential sources” did not override the fact that autopsy reports are not public records. She granted the union’s request for an injunction, enjoining Channel 7 from “releasing or using the autopsy report or their contents,” citing:
- a) “compelling state interest...in protecting the confidentiality of...medical examiner autopsy reports” and
- b) the existence of “a lawful approach to obtaining these records, including petitioning the court in a civil action.”
Broadcasting the information, the judge noted, would do irreparable harm to the firefighters’ families, when there is ample time to obtain the documents through legal process. And because there was “no potential” that Channel 7’s source was a party with the ability to waive confidentiality of the autopsy report, the court found that a prior restraint on free speech under these circumstances was justified.
Channel 7 immediately sought to appeal, but because the judge ruled from the bench, nothing had been in writing and the defense had to wait until the following day to get a formal copy of the decision. Thus, there was no avenue for appeal on the night of the intended broadcast.
Channel 7 was the only news outlet the order enjoined, despite the possession of the same information by other news media. Local news channels broadcasted the story on the evening news. In the days that followed, major newspapers including the Boston Globe and the New York Times published a slew of reports pertaining to both the injunction and the controversial autopsy findings.
“[The firefighters’ union] did not realize everyone else had it,” said Block. “We were just the ones who were gonna break it.” But Channel 7 had to withhold running the story and wait for an appeals decision the next day.
On October 4, Appeals Court Judge Andrew Grainger said in his memorandum that there must be concrete evidence of the effects of disclosing the autopsy report’s contents to justify such an injunction. He cited that, as per Near v. Minnesota (1931), “the chief purpose” of the first amendment was precisely to prevent prior restraints to publication, and thus, as per the Care and Prediction of Edith (1996) opinion, “any attempts to restrain speech must be justified by a compelling state interest to protect against a serious threat of harm.”
But given the “wide dissemination” of the autopsy report’s contents by other media outlets since the injunction, the plaintiff could no longer identify any “compelling interest...the restraints will serve.” The firefighters union then pressed that the emotional distress caused by continued press coverage, as opposed to the initial public disclosure it first sought to prevent, now served as that compelling interest.
The judge, however, found that the plaintiffs have not sustained their burden to demonstrate that such an interest is furthered by preventing one additional television station from broadcasting information that all other stations, newspapers, radios and on-line media have disseminated and continue to disseminate.
Further, Judge Grainger was faced with the constitutionality of the preliminary injunction order: whether Judge Hopkins “applied proper legal standards and whether there was reasonable support for [her] evaluation.” Applying a de novo standard of review, Judge Grainger concluded that “the preliminary injunction was not justified under any criteria which override the heavy presumption against prior restraint on free speech.” That is, the plaintiff’s arguments did not carry enough legal weight to have warranted prior restraint in the first place.
The plaintiff’s main argument and Judge Hopkins’ decision had rested primarily on the legality of obtaining a confidential, non-public document such as an autopsy report. Judge Grainger acknowledged that, as per Branzburg v. Hayes (1972), the first amendment does not guarantee the press a constitutional right of unrestricted or special access to information not available to the public in general; however, he also acknowledged that Channel 7 did not contest that point, but rather sought “to broadcast information already in its possession.”
He thus found the union’s argument based on Globe v. Chief Medical Examiner “unavailing” because “the inability of the press to require the government to disclose information...not part of the public record does not support a restraint on...information already known to the press.”
Thus by 5 p.m. on October 4th, the Superior Court order was vacated and the injunction dissolved. But as noted earlier, it came 24-hours too late. The situation was “beyond frustrating” for Block.
“We had the information first,” Block said. “We were just sitting on it while every other news station came out with it in two hours.” And that rendered the ban moot. Judge Grainger had even said from the bench that the news “landed on his doorstep” when he went to get his morning paper on the day of the appeal.
That the restraining order was by this point inconsequential had been the obvious and immediate reason to lift the restraint.
But the second and more pertinent half of Judge Grainger’s job was to decide the constitutionality of the injunction. Did the union have sound legal bases to push for prior restraint? More importantly, did Judge Hopkins appropriately consider the weights the first and fourth amendments bore on this case?
An examination of the legal points brought up in the dispute shows that:
- a) the union’s arguments were shaky at best;
- b) Judge Hopkins had reached a premature decision; and
- c) even if the injunction weren’t lifted, the union could only go so far legally to criminalize the disclosure of the autopsy reports.
Judge Hopkins had viewed the case as one of privacy, not prior restraint. Assuming that vein, the Firefighters’ Union would then have had a strong case.
First of all, Massachusetts law clearly states that autopsy reports are not considered public documents. Secondly, as per the fourth amendment, access to such private documents requires an authorized warrant, in this case, documented permission from the chief medical examiner or next of kin.
The situation, however, had gone beyond obtaining the autopsy reports: Channel 7 did not have the actual reports but only the information contained therein. Moreover, the station alleges that it broke no law in obtaining the information.
But the union’s attorney Paul Hynes asserted that Channel 7 could not have accessed the information legally. If that is the union’s main contention, the suit then truly becomes a privacy case and not a prior restraint case, as Judge Hopkins held. In that instance, however, possibility of questionable news-gathering methods notwithstanding, the union should have taken action subsequent to publication, and not before.
But even then, the case is decided based not on the fact that the media had the information in their possession, but on the conduct of the media in obtaining that information. Block maintains that Channel 7 did nothing illegal, never trespassed on anything, and obtained the information through a confidential source. If this is true (although she may have to prove it by surrendering the anonymity of her source), then the station could not be held liable for breach of privacy. Whoever leaked the source, however, could be.
The union seems to acknowledge that Channel 7 is exculpable in that matter. Edward Kelly, president of the union, demanded an immediate investigation into the identity of the leaker. The Suffolk District Attorney, however, does not intend to carry out any such probe. In any case, even if the leaker is identified and censured or the station is held liable in lieu of its confidential source, disclosure of autopsy reports does not carry any criminal penalty in Massachusetts.
The case, then, may carry only minimal legal repercussions, but the decision to publish carries ethical questions. According to Hynes, the Payne and Cahill families had not seen the autopsy results at the time Channel 7 intended to broadcast the information.
One Boston Globe columnist said the media was being “insensitive in reporting facts that [would] cause enormous pain to the...families.” Block, however, said she gave ample consideration to the impact the news would have on the families:
I genuinely feel bad for the families, but for them to blame Channel 7? It’s an emotional issue, and they needed someone to blame. We are paying the price for paving the way for freedom of the press. [Someone had said that] for Channel 7 to sit on that story was like asking firefighters to go to a fire and sit and watch it burn. We’re not telling them which houses to save. Don’t tell us what to report.In the end, after squabbles over privacy laws and confidential sources and issues of emotional damage, it all boils down to one point: Newsworthiness.
It is a defense irrelevant to the arguments presented by the plaintiff, but a defense so strong it trumps most concerns for privacy, especially those of civil servants. Is it an issue of public concern? Does the public have the right to know that some of the people paid by tax dollars to fight deadly fires and save lives may be under the influence of alcohol and drugs?
That is a seven-year-old question in Boston. Curiously enough, as Boston Mayor Thomas Menino’s chief of staff as recently as 2006, Merita Hopkins “signed off on contracts that lacked the sort of oversight that [would] be the inevitable legacy of this tragedy.” Currently, random drug testing is not mandatory in Boston’s fire department; tests are conducted only under suspicion.
But as a result of the briefly censored news Channel 7 was poised to break, Mayor Menino is setting into motion some long-warranted changes. On the same day the injunction was lifted, Mayor Menino called for an independent review of the fire department’s procedures regarding the abuse of drugs and alcohol. A special panel recommending an adoption of random testing of firefighters convened in late November, three months after the tragedy.
Surely these steps to better society could not have been made if the plaintiffs succeeded, and the press, the vanguard of democracy, was denied the rights guaranteed them by the constitution of a free and democratic United States.
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