Media Law Column

Discussing slots in private: Good government or violation of law?

By Robert A. Bertsche, Prince Lobel Tye LLP ~ March 7, 2013

Robert A. Bertsche - Prince Lobel To hear the selectmen of Danvers tell it, they were between a rock and a hard place. Making an end run around the state’s Open Meeting Law seemed the best solution.

Only two weeks earlier, word had leaked out that a casino developer was eyeing the Liberty Tree Mall, located on one of the town’s most heavily trafficked arteries, for a 24-hour slots-only gambling parlor.

This was serious stuff: The developer had shelled out $400,000, nonrefundable, to vie for one of four gambling licenses to be awarded by the Massachusetts Gaming Commission in the next year.

Concerned citizens of Danvers were already lining up on both sides of the issue, expressing their opinions to selectmen and clamoring for information.

Selectmen wanted the developer to hear the concerns that residents were expressing in calls and emails to the board members. But the developer was loath to discuss its plans publicly, at least not without some advance preparation. So it requested a private meeting with the selectmen.

As one board member explained it, the developer “wanted to know the concerns of the Selectmen, and what we felt would be the concerns of the citizens,” so as “to make sure they could answer all of our questions and concerns when they came before us publicly.” That sounds fair enough.

There was just one problem: the state’s pesky Open Meeting Law and its inconvenient mandate that “all meetings of a public body shall be open to the public.” As revised in 2010, the law applies to any “deliberation by a public body with respect to any matter within the board’s jurisdiction” (subject to a few listed exceptions, not applicable here).

A “deliberation” is defined to mean “an oral or written communication through any medium, … between or among a quorum of a public body on any public business within its jurisdiction” (again, subject to some exceptions — this is a Massachusetts statute, after all).

Under the amended statute, even if the quorum is not trying to reach a decision, the mere “communication … between or among” its members on a matter of public business will constitute a “deliberation” subject to the law.

Selectman Gardner S. Trask III summed up the quandary succinctly in a letter to the Salem News: If a majority of the five selectmen “were to all be in a room” with the developer, “then it could be considered ‘deliberation.’ Even if we exchanged questions and answers in email with three or more of us on the email, it could be considered ‘deliberation.’” That would mean the selectmen would have to let the public in on the discussions.

So, instead, the selectmen resorted to a favorite refuge of public officials seeking an end run around the sunshine law: what the Appeals Court has dubbed the “rotating quorum.” On Feb. 6, they invited the developer and other town officials to a room in Danvers Town Hall, firmly shut the doors to keep out the public, and then rotated selectmen in and out of the meeting room to engage in “individual planning sessions” with the developer.

As Selectman Trask explained with admirable candor, “No more than two members met with the developer at one time. … By breaking it up into (ultimately) four separate discussions, we [conform] to the law, let the developer know our individual questions and concerns, and allow them to prepare details for the public meeting.” Everybody wins. Or so the story goes.

Sprit, letter of the law

Was the board’s action legal? Massachusetts law on the point isn’t altogether clear.

Certainly the strategy violates the spirit of the Open Meeting Law, as it has been interpreted on numerous occasions by the Supreme Judicial Court.

The statute is “designed to eliminate much of the secrecy surrounding deliberations and decisions on which public policy is based.Ghiglione v. School Comm. of Southbridge, 376 Mass. 70, 72, 378 N.E.2d 984 (1978).

That is because secrecy not only leads to poor decision-making by limiting discussion, it also breeds distrust. Open meetings, by contrast, ensure that political leaders “debate the issues and disclose their personal viewpoints” before making decisions, and “provide an opportunity for members of the public to hear the opinions of members of the governmental body.” District Attorney for Northern Dist. v. School Comm. of Wayland, 455 Mass. 561, 570, 918 N.E.2d 796, 803 (2009).

Underlying the Open Meeting Law is the conviction that “[i]t is essential to a democratic form of government that the public have broad access to the decisions made by its elected officials and to the way in which the decisions are reached.Foudy v. Amherst-Pelham Regional Sch. Comm., 402 Mass. 179, 184, 521 N.E.2d 391 (1988) (emphasis added).

In other words, cumbersome as it may sometimes be, the public’s business is supposed to take place in public view. The public is entitled to know not merely what our elected officials have decided to do, but also how and why the officials reached those conclusions.

But would a court hold that Danvers selectmen violated the letter of the law? The selectmen’s argument appears to be that they did not engage in “deliberation” — “an oral or written communication through any medium, … between or among a quorum of a public body on any public business within its jurisdiction” — both because there was no quorum in the room at any one time, and because the selectmen, at least according to their own published accounts, did not communicate about the slots parlor with each other.

The first question is whether a court would agree with the selectmen that because there was no quorum in the room at any one time, there was no “deliberation.” There’s good reason to believe a Massachusetts judge would reject that argument, in part because of the well-established tenet that the law’s provisions “are to be broadly and liberally construed in order to effectuate the legislative purpose of openness.” General Elec. Co. v. Department of Env’tal Protection, 429 Mass. 798, 806 n.9, 711 N.E.2d 589 (1999). The SJC has also stated that “a construction that would defeat legislative purpose will not be adopted ‘if the statutory language “is fairly susceptible to a construction that would lead to a logical and sensible result.”’” McCrea v. Flaherty, 71 Mass. App. Ct. 637, 649, 885 N.E.2d 836, 846 (2008).

Relying on that principle, the Appeals Court found in 2008 that the Boston City Council had violated the Open Meeting Law by engaging in the same “rotating quorum” scheme: meeting privately in small groups, with a guard outside the closed meeting room to cycle council members in and out while ensuring that there was never a majority of the council inside the room.

The Appeals Court rejected Boston’s “strained” and overly literal argument that because there was never a quorum, there had not been any deliberation, then defined as a “verbal exchange between a quorum of members.” McCrea, 71 Mass. App. Ct. at 649, 885 N.E.2d at 846.

But the Danvers selectmen have an argument up their sleeve that the Boston City Council did not have. Selectman Trask, at least, took pains to tell the Salem News that he had not discussed with other selectmen “what they asked, heard, or felt” during their meetings with the developer.

Assuming the other selectmen would assert that they, too, never communicated with their colleagues on this subject, was there ever the “communication between or among a quorum” necessary for a “deliberation” to take place under the law? While the conclusion is hardly free from doubt, I think the answer is “yes.”

The SJC addressed a similar question 24 years ago, in a case involving a search committee tasked with interviewing candidates for school superintendent in the town of Weston. The committee argued, among other things, that its “interviews” consisted simply of a standard and unvarying list of questions put to applicants, followed by the applicants’ answers, apparently with no further discussion. Thus, it said, there was no “verbal exchange” among the committee members, as was required to constitute a “deliberation” under the law then in force.

The SJC pronounced itself unpersuaded, declaring that because the questions and answers “conveyed information about the candidates to the committee members present,” “[t]hat was enough to constitute a ‘verbal exchange’ between the committee members within the meaning of the statute.” Gerstein v. Superintendent Search Screening Comm., 405 Mass. 465, 469-70, 541 N.E.2d 984 (1989).

In other words, if a quorum was present, it was not critical that the committee members were not talking to each other. The same conclusion obtains even more readily under the amended law, which refers to a “communication” instead of a “verbal exchange.” “Communication between or among a quorum” occurs, for statutory purposes, even when a (rotating) quorum of members is receiving information from a third party.

The selectmen had an alternative, lawful solution readily at hand. Had one or two selectmen, alone, met with the developer, and had they then reported on the meeting to their colleagues at a public selectmen’s meeting, there would have been no violation of the Open Meeting Law. But when a quorum of the board gets into the act, they can’t exclude the public.

Bad policy

Trask insisted to the Salem News that the Danvers selectmen believe the approach they took was legal under the Open Meeting Law, and that they had no “nefarious intent” when they devised a way to get out from under the law’s requirements. One may take him at his word.

Another selectman, Keith Lucy, defended the board’s approach as an example of “board members doing the job that they were elected to do”: “echoing the voices of many, and relaying what we see as the major concerns.” Better to do so early in the process, when the developer is still shaping its proposal and can respond.

Still, “good intentions” are not a defense under the Open Meeting Law. The selectmen are correct that by putting a premium on transparent communications, the statute exacts a cost in efficiency. Providing advance notice of meetings and the topics to be discussed, keeping and disseminating minutes, and banning backroom discussions among a quorum of the board — all of those requirements make the process of governance less convenient and more cumbersome.

That is one reason why the law contains exceptions permitting emergency meetings and secret sessions when necessary to serve certain purposes expressly defined in the law, such as to discuss private personnel issues, or to conduct candid discussions of how the board will negotiate with a party seeking to purchase town land.

There is no exception, however, that allows a publicly elected board to meet, essentially collectively, with a private party in order to convey constituents’ views outside of the constituents’ earshot. Nor should there be. The Open Meeting Law is designed to ensure that the public’s business take place in public, a consideration of particular importance when debating the merits of a development that has aroused public passions.

Regardless of how a court might rule on legality, the selectmen’s approach was bad policy, not because the selectmen should not be conveying the public’s views, but because when a majority of them do so as a group, behind closed doors, they risk shutting the public out of this stage of the decision-making process. The closed-door sessions had the effect of putting the selectmen in the position of being intermediaries, filtering to the public only such information as they deemed fit for the public to hear. That’s simply not the way a democracy should work.

After their private meetings with the developer’s representative, the selectmen — aware of the widespread public interest in the proposed slots parlor — found themselves in the position of recounting to the media discrete snippets of what they had learned.

One told the Salem News only that it was “a good meeting,” “really an exploratory discussion.” Trask said the developer “offered a high-level preview of the proposal, which included some corporate financial details, out-of-town alternatives, and details that could affect their business negotiations with other third parties,” some of it information “they wanted to keep confidential until the public meeting.”

Board members divulged selected details: that the proposed parlor would employ as many as 700 people, would accommodate up to 2,500 customers and up to 1,250 slots, and would not require any expansion of the mall. The developer, they said, seemed sympathetic to the residents’ traffic concerns.

As for those Danvers citizens with questions of their own, selectmen urged them to be patient and to await their turn. After all, as Selectman Lucy pointed out, if the developer goes forward with its proposal, by law Danvers voters would have to give their approval in a special election, which would be preceded by at least 60 days “for a complete dissection and discussion on the agreement before votes are cast.”

Even as they met with the developer behind closed doors, the selectmen had already scheduled a first public hearing to take place a month later, on March 5, and one selectman promised to set up a series of open forums to permit residents to share their views in due course. In other words, there would be time enough to bring the public fully up to speed. It sounded a bit like the public-information version of “Let them eat cake.”

Then there was the statement made by the board’s chair, William Clark Jr., to The Boston Globe. Clark said that he had heard enough in the private meeting and that his mind was made up: “I don’t think it’s a good use for the property, it’s not good for the neighbors, and it would be a major problem for Routes 114, 128 and 1.”

When our public officials are making decisions about public policy issues based on information that is not shared with the public, the credibility of the government suffers. The public should not be excluded from the debate.

They may have acted out of good motives and beneficent intentions, but by yielding to the temptation of a closed-door meeting, the Danvers selectmen did their constituents, and themselves, a disservice.

Robert A. Bertsche, a media lawyer at the Boston law firm of Prince, Lobel, Tye, serves as outside general counsel to the New England Newspaper and Press Association.

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Bill Would Criminalize Reporting About Minor Witnesses

By Jeffrey J. Pyle ~ Prince Lobel Tye LLP

A bill filed Jan. 21 in the Massachusetts Senate would impose up to one year’s imprisonment on any member of the press who discloses the identity of a witness in a criminal proceeding who is under the age of 18, even where the witness’s testimony was given in open court. The Joint Committee on the Judiciary has scheduled a hearing on the bill for February 7 at 1:00 p.m. NENPA members should attend and testify against this unconstitutional assault on the right to cover criminal trials.

Introduced by Assistant Majority Leader John Hart, Jr. (D-Boston), Senate Bill 785 would prohibit “attendees” of a criminal trial, including “members of the media,” from disclosing the name of any minor witness to a crime, and from disclosing “any other information” about such a witness. The bill would also prohibit publication of any picture of such a witness, whether taken in court or not. Additionally, the bill would require any information about such a minor witness to be filed under seal, without the necessity of a court order.

The bill, in short, would criminalize the reporting of the news. In doing so, it would violate the longstanding First Amendment-based rule against “prior restraints” on speech. The U.S. Supreme Court has held that the government may not prohibit or punish speech by the press, except in exceptionally grave cases, such as those involving serious threats to national security. Nor can a “prior restraint” be imposed as a general rule. In the extremely rare circumstances where such a prohibition is appropriate, it must be made through a judicial determination supported by evidence and findings, as well as narrow tailoring of the order to fit the circumstances.

In 1982, the U.S. Supreme Court struck down a Massachusetts statute that required the closure of the courtroom during the testimony of minor victims of sexual offenses. The court held that the press and the public have a constitutional right to attend criminal trials, and although protecting the psychological well-being of victims can be a compelling interest, it cannot not justify a mandatory closure rule in every case.

Senate Bill 785 goes much farther than merely closing the courtroom – it would result in the imprisonment of journalists who report information they have lawfully obtained through attending a public trial. Indeed, in prohibiting the disclosure of “any other information” about the witness, the bill would criminalize reporting the substance of a minor witness’s testimony, even where his or her identity is shielded.

Please attend the hearing on February 7, and contact your state senators to urge them to vote against this misguided bill.

Court to Media: Don't Take Off That Photo Credit

By Robert A. Bertsche ~ June 21, 2011

Two New Jersey radio disc jockeys stripped down for a magazine photo.  Their radio station posted the photo, shown here, on its website.  And now they could all lose their shirts – in court.

By narrowly reading the words of a federal statute, the influential U.S. Court of Appeals for the 3rd Circuit last week created a new kind of legal claim that can be brought against online and print publications. The ruling will affect publishers, editors, art directors, and bloggers whenever they republish a photograph that originally appeared elsewhere. 

As everyone should know by now, before online and print media – or anyone, for that matter – can publish a photo taken by someone else, they normally need to get permission from the copyright holder.  Permission is not required only if the photo is in the public domain, or if the republication of the photo is deemed a "fair use" under copyright law. Whether a particular use is considered a "fair use" requires a multi-factor analysis, probably best done with the assistance of a lawyer. That much of the law has been settled for quite some time now.

Last week's federal appeals court ruling adds an additional, independent issue to be considered under those circumstances:  Even if a republisher’s use of the photo is deemed to be a "fair use," the republisher will still be liable if it fails to also republish the photo credit information that appeared in the earlier publication. 

Since the ruling came from the 3rd Circuit, it is binding law only in Pennsylvania, New Jersey, Delaware, and the Virgin Islands. Still, the ruling is likely to be followed by other federal courts - meaning that, to avoid liability, anyone who publishes photos obtained from others ought to take heed.

The Legal Basis
The liability arises under the Digital Millennium Copyright Act (DMCA), a federal statute that has received attention primarily for its provisions that bar circumvention of computer encryption software.  Online media and bloggers also know the statute as a limited protection against the risk that a website visitor were to upload to their site a story or photo that infringed copyright. In such an event, the DMCA provides for a takedown procedure which, under certain circumstances and if followed rigorously, would leave the website free from liability for the user's infringing post.

Last week's case involves a different provision of the DMCA, one which prohibits intentionally removing or altering "any copyright management information" or publishing or disseminating a work despite knowledge, or reasonable grounds to believe, that the copyright management information has been removed.  "Copyright management information" is defined as "information conveyed in connection with copies ... of a work ..., including in digital form, … [t]he name of, and other identifying information about, the author of a work." Clearly, a photo credit would qualify.

The Facts
The case underlying the ruling arose out of a photograph published in New Jersey Monthly's "Best of New Jersey" issue.  The magazine had hired photographer Peter Murphy to photograph Craig Carton and Ray Rossi, who at the time were co-hosts of a show on WKXW Radio. NJM called them the "best shock jocks" in the state. Murphy, and not the magazine, retained copyright in the image. 

Somebody at the radio station (without Murphy's knowledge or permission) scanned the image from the magazine and posted it to the WKXW website.  As scanned and posted, the photo of the two barely clad shock jocks did not include the magazine's caption referring to the "Best of New Jersey" award, nor did it include the gutter credit identifying Murphy as the photographer. The station then invited visitors to the site to digitally edit the image, and 26 Photoshopped* renditions of Murphy’s photo were ultimately submitted and posted.

Murphy sued the station for copyright infringement and violation of the DMCA. The federal district court in New Jersey dismissed his claims on summary judgment, saying that the use of the photo was a fair use, and that the DMCA only applied to "automated copyright protection or management systems."  But the Third Circuit reversed that ruling on both grounds.

The Third Circuit’s Ruling
The Court of Appeals said, first, that by its plain terms the DMCA provision bars removal of "copyright management information," period, and does not require that the information be part of an automated system.  The decision makes clear that the radio station would be liable on that grounds whether or not the posting and alterations of the photo were a fair use. To translate that to a newspaper or magazine setting: Even if the publication's use of a photo falls under fair use, the publication will still be liable (under the DMCA) if it does not include the photo credit that accompanied the photo in its original setting.

As if that weren’t enough bad news for WKXW, the Court of Appeals also revisited the district court’s fair use finding. Applying the four-factor test for fair use, the Court of Appeals held that the postings of the photo, both as shot and as Photoshopped by users, were not a fair use. So it sent the case back to district court for further proceedings, and ultimately trial, on both the DMCA and copyright claims.

The Kicker
But wait, there’s more!  There is also a defamation claim that survives, because the two DJs had (allegedly) responded to the photographer's objections with the level of prudence and discretion one might expect of two “shock jocks”: by implying that the photographer was gay and so litigious he would sue his own business partners. The photographer apparently took umbrage, and the court said not enough discovery had occurred to merit dismissal of that claim.

One can imagine that the radio station will seek further review of the case before the Court of Appeals before the case returns to the federal district court.  And even then there may be more motion practice before the case goes to trial. 

Impact and Ramifications
Some final thoughts from Rob Bertsche, the author of this alert, about the decision and its impact:

  • If the violation of the DMCA is intentional and made for commercial gain, criminal charges can result (in addition to a civil suit). There are legal and practical reasons why it is extremely difficult to imagine this kind of case putting a publisher in jail – but I raise the possibility just in case you weren't already paying attention.
  • Editors, beware: I'm wondering whether this case sets a precedent for a writer or magazine to be sued for "plagiarism." As you know, plagiarism – using someone else's work without attribution – may be a journalistic sin, but there's currently no law against it. Could the reasoning of this case also be applied to impose liability for a magazine article that contains plagiarism, on the grounds that the omission of the original author's byline constitutes removal of "copyright management information"?
  • My colleague, Peter J. Caruso II (an intellectual property maven), wonders whether the Third Circuit's decision might leave the door open to a claim that excluding photo credit information is also actionable under the federal Lanham Act as “reverse passing off” – misrepresenting a third party's goods or services as one's own. Conversely, it could strike the death knell to such claims, because courts will find that copyright law alone provides sufficient relief. (These are the kinds of things that lawyers like to debate.)
  • Oh, and one more thing:  The photo above is © Peter Murphy, as it appeared on the cover of New Jersey Monthly, which is © New Jersey Monthly Magazine.  As for this article, we’re going the Creative Commons route (see below).
*And yes, the irony of our using the verb "Photoshopped" instead of saying "modified using Adobe® Photoshop® software," is not lost on us. But you already know that "Adobe" and "Photoshop" are registered trademarks of Adobe Systems Incorporated in the United States and/or other countries.

Click here for a copy of the decision, Murphy v. Millennium Radio Group LLC, Craig Carton, and Ray Rossi, No. 10-2163 (3d Cir. June 14, 2011).

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