Saturday, January 8, 2011

Open Letter to Columbia J-School #2: Amicus Brief requested in Khan v. faculty felon and eMusic CEO Adam Klein

Dear Provost Steele, here is Open Letter #1.
Here is this letter at wepapers.

May I remind you all right now that gag orders in civil cases are presumptively invalid, and there must be a compelling governmental interest, with a plan narrowly-tailored to meet such interest that is not overbroad. Anyone and everyone has standing to pursue an overbroad statute. See also Capital Cities Media, Inc. v. Toole 463 U.S. 1303, 103 S.Ct. 3524 U.S.,1983. “It is clear that even a short-lived “gag” order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect.” As for the State's concern for the jurors' privacy, we have not permitted restrictions on the publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial, Oklahoma Publishing Co. v. District Court, 430 U. S. 308,430 U. S. 311-312 (1977) (per curiam); Nebraska Press Assn. v. Stuart, 427 U. S. 539,427 U. S. 568 (1976), even for the obviously sympathetic purpose of protecting the privacy of rape victims, Globe Newspaper, supra, at 457 U. S. 607-609; Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 420 U. S. 491-495 (1975). See also Smith v. Daily Mail Publishing Co., supra, at 443 U. S. 104:

"If the information is lawfully obtained . . . the state may not punish its publication except when necessary to further an interest more substantial than is present here -- i.e., protecting the privacy of an 11-year-old boy charged with a juvenile offense. In an extraordinary case, such a restriction might be justified, but the justifications must be adduced on a case-by-case basis, with all interested parties given the opportunity to participate, and less restrictive alternatives must be adopted if feasible. Globe Newspaper, supra, at 457 U. S. 608-609, and n. 25; Richmond Newspapers, Inc. v. Virginia, supra, at 448 U. S. 580-581 (opinion of BURGER, C.J.); Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 842-843 (1978). The order was entered without a hearing, and without findings of fact that would justify it; respondent has suggested no concern specific to this case in support of his order. Accordingly, I grant applicants' request for a stay of the provision.

And if the Court is going to issue any sort of gag order that applies to me in this case I am entitled to a hearing, substantive and procedural First Amendment Free Press concerns compel such a result. And if such an Order issues, it will be met with a visit to the ACLU as noted by Yours Truly. I will be filing an SJC Rule 1.19 Notice and checking the docket shortly. I have seen Massachusetts Courts issue gag orders before that Harvard's Citizen Media Blog held unconstitutional, Orders that the ACLU and Proskauer, Rose pursued all the way to the full SJC panel before Denner and his erstwhile partner Kevin Barron settled a malpractice case.

I don't plan on staying in State Court here, I plan on going straight to Federal Court because I will not stand for this sort of nonsense. There are no issues of National Security going on here and the child involved is 18 years of age. I can probably obtain a waiver from her anyway because as Attorney Jeffrey Denner noted, Adam Klein has been at best a sperm donor anyway. As far as I know, the only thing this Court may prevent me from publishing are the details of compensation for Columbia faculty felon and eMusic CEO Adam Klein. And Klein -- much as I'm certain he hates my publication and characterization of his criminal activities -- has no Cause of Action against me and if he raises one it will only heighten awareness of the issue in general.

Be that as it may, until I find law to the contrary I will assume that I am not entitled to that information and may not publish it, which is a crazy quirk of Massachusetts law as many States never impound such information. But if that is the law here in Massachusetts, then that is the Law and I will follow it because that's what I do. Follow the Law, unlike Adam Klein, ahem.

Courts have always had secret files for the prominent, and to some extent these protections have been eroded, even in paternity actions, which this case... is not. See generally Hartford Courant and Connecticut Law Tribune cases at the First Amendment Center. Note further that paternity is not even contested herein. Therefore, I would ask that the Court fully address the matter of impoundment de novo, because there is no undue embarrassment or harassment to befall Adam Klein if I publish his financial statements.

The embarrassment he has occasioned comes from the fact that he is a criminal, not from the fact that he managed to eek out a substantial corporate career notwithstanding. See George W. Prescott Pub. Co. v. Register of Probate, 395 Mass. 274 (1985)(will upload later) followed by Peckham v. Boston Herald, 48 Mass. App. Ct. 282 (1999)........
The issue of newsworthiness is best left to a Jury, and I will be more than happy to discuss it with them. See Fn 1 at the conclusion of this journal entry.

While in Prescott the Commissioner as public official has diminished privacy expectations, so too does the CEO of a very large ($70M revenue in 2009) international corporation who is a college professor with the ability to shape young minds. This is particularly true given the thorns in his past, everyone knows that convicted felons enjoy less privileges than the rest of us law-abiding citizens.

Further please note that husbands typically lose cases when they fail to provide financial information, but in this case the public documents in the Court of Appeals show a marked divergence from that history for some reason, see Wansong v. Wansong, 395 Mass 154 (1985).
However, any notion that I may not be allowed in Court is absurd and that will fight that after I file an SJC Rule 1:19 Media Notice to the Court requesting explicit rationale if I am denied. I have run video at many trials in Ohio and in New England, including the infamous Jason Vassell racial beat down (12/13 top YouTube videos are KingCast videos) and the infamous Dan Talbot murder trial (33 videos) I don't create pandemonium in any Courtroom, I just sit there quietly with my little Canon blazing away in High Definition, court watching as our Founding Fathers would have wanted it, right?

The things I have seen going on in America's courtrooms throughout my life -- as a reporter and practicing attorney -- are patently unconstitutional, yet people without adequate resources are often forced to live with it. Well even here with shoestring budget, I fight these fights because the only life worth living, is the one in which you are free to live in the first place. Anything less is unacceptable.

Put simply I will not tolerate the Bench or these big shot lawyers threatening a little journalist like me with arrest for reporting public facts relating to anyone in any case. And you shouldn't stand for it either -- you should be interested in everything I have to say about Adam Klein that someone apparently missed in the vetting process. Everything I have published is a matter of public record That's what I do, and I will protect my right to do so using each and every legal recourse I can think of. I showed the courtesy of emailing counsel in this case already and asked if they wished to conduct interviews and they declined. Such is their prerogative. However that had nothing to do with my rights to cover this event in any way I deem appropriate, and I feel comfortable that my position will be vindicated in the Judicial process.

Respectfully and stridently submitted on behalf of the Fourth Estate,
Christopher King, J.D. -- Reel News for Real People

cc: Massachusetts ACLU
Lee, Levine & Bowser
Jeffrey Denner, Esq.
Linda Ouellette, Esq.
Hon. Dorothy Gibson

Fn.1 (From Peckham) The parties dispute the propriety of deciding the question of newsworthiness on summary judgment.   The issue has not been explicitly addressed in the Commonwealth.   In Jones v. Taibbi, 400 Mass. at 801, 512 N.E.2d 260, the question whether the plaintiff's arrest was a matter of legitimate public concern was treated as one of law and decided on summary judgment [KingCast note: Jones was not a convicted felon, merely arrested].  Decisions of other courts show a lack of agreement as to whether newsworthiness should in a given case be treated as a question of fact for the jury, see Virgil v. Time, Inc., 527 F.2d 1122, 1130 & n. 13 (9th Cir.1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976);  Veilleux v. National Bdcst. Co., 8 F.Supp.2d 23, 38 (D.Me.1998), a question of law for the judge, see Cinel v. Connick, 15 F.3d 1338, 1345-1346 (5th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994);  Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 101-102, 538 P.2d 450, cert. denied sub nom.  Woestendiek v. Walker, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975) (libel action);  Barber v. Time, Inc., 348 Mo. 1199, 1206-1207, 159 S.W.2d 291 (1942), or a mixed question of fact and law, see Winstead v. Sweeney, 205 Mich.App. 664, 671-672, 517 N.W.2d 874 (1994).   One factor supporting early disposition as a matter of law is the importance of constitutional interests in free speech and press that may be chilled if protracted litigation is allowed to be the norm rather than the exception-the same reason for which summary judgment is particularly favored in the defamation context.   See King v. Globe Newspaper Co., 400 Mass. 705, 708, 512 N.E.2d 241 (1987), cert. denied, 485 U.S. 940, 108 S.Ct. 1121, 99 L.Ed.2d 281, 485 U.S. 962, 108 S.Ct. 1227, 99 L.Ed.2d 427 (1988), and cases cited;  Cefalu v. Globe Newspaper Co., 8 Mass.App.Ct. at 74, 391 N.E.2d 935.   This need may be strongest where the tort of public disclosure is concerned, because it involves concededly truthful rather than false publication.   See Romaine v. Kallinger, 109 N.J. 282, 298, 537 A.2d 284 (1988).   Thus, we reject the view that the legitimacy of public concern should always be treated as a question of fact, as that view eschews the well-recognized gatekeeper function of the judiciary in these cases.   See New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).   It is the role of the court to determine whether a jury question is presented, and here, where the standard is founded  on community mores, the question is whether reasonable minds could differ as to how the community would regard the publication at issue.   See Gilbert v. Medical Economics Co., 665 F.2d 305, 309 (10th Cir.1981).

1 comment:

opencourts said...

True enough, I could be all worked up over nothing, and it is entirely possible that the Court will

a) allow me to quietly and unobtrusively run courtroom video.

b) not seal the financial statements of faculty felon Adam Klein.

But I doubt it.

Time will tell.

-The KingCaster.