


		EFF Amicus Curiae Brief in MA state In re: Enforcement of a Subpoena case (Dec. 12, 2001) COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SUFFOLK COUNTY No. SJC-08633 IN RE: ENFORCEMENT OF A SUBPOENA On Appeal from the Judgment of the Supreme Judicial Court for Suffolk County BRIEF OF ELECTRONIC FRONTIER FOUNDATION AS AMICUS CURIAE Cindy Cohn, Esquire California SBN 145997 Legal Director, Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Tel: (415) 436-9333 ext 108 Fax: (415) 436-9993 December 12, 2001 TABLE OF CONTENTS TABLE OF AUTHORITIES ii Interest of the Amicus 1 Introduction 1 ARGUMENT 3 I. IMPOUNDMENT OF APPELLANTÕS PLEADINGS WOULD CONSTITUTE A PRIOR RESTRAINT ON SPEECH, AND THE MEDIAÕS AND THE PUBLICÕS RIGHT TO KNOW, GUARANTEED BY ARTICLE XVI OF THE MASSACHUSETTS DECLARATION OF RIGHTS AND THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES 3 II. E-MAIL AND PRIVACY 5 TABLE OF AUTHORITIES CASES Bartnicki v. Vopper ___ U.S. ___, 121 S.Ct. 1753, 1765 (2001) 5 Lamont vs. Postmaster General 381 U.S. 301, 85 S.Ct. 1493 (1965) 5 Nebraska Press Association v. Stuart 427 U.S. 539 (1976) 4 New York Times Co. v. United States 403 U.S. 713 (1971) 4 STATUTES Electronic Communications Privacy Act 18 U.S.C. §§ 2510-2520 and 2701-2709 5 Privacy Protection Act, 42 U.S.C. § 2000aa 5 BRIEF AMICUS CURIAE OF THE ELECTRONIC FRONTIER FOUNDATION Interest of the Amicus. The Electronic Frontier Foundation ("EFF") is a non-profit, member-supported civil liberties organization working to protect rights in the digital world. EFF actively encourages and challenges industry, government and the courts to support free expression, privacy, and openness in the information society. Founded in 1990, EFF is based in San Francisco. EFF has members all over the United States and maintains one of the most-linked-to Web sites (http://www.eff.org) in the world. Introduction. This case presents two issues of concern to those who care about civil liberties. Those issues are intertwined. First, this case involves a matter of the intense and legitimate public interest. A judge imposed a sentence upon a highly unpopular defendant in a case that received an enormous amount of publicity, provoking a high volume of private, public and media controversy. Members of the Massachusetts legislature called for various forms of investigation and discipline of the judge. Some demanded removal of the judge from the bench. Appendix 137-145. A judicial conduct investigation of the judge commenced, and has been conducted under rules of secrecy. In the course of that investigation, a subpoena was served upon the husband of the judge, who also happens to be the publisher of a local weekly newspaper and who also, from time to time, writes for his own newspaper. The subpoena called for production of e-mails sent by and received by the husband on the subject of the investigation of, and public reactions to, the sentencing and related events. The husband has resisted compliance with the subpoena in court, and also moved to open these judicial proceedings and particularly to be allowed to publicly distribute copies of pleadings filed in court on his behalf. The husband, Appellant here, was not even allowed by the Single JusticeÕs impoundment order to distribute copies of his own pleadings. Appendix 257-259. Appellant has contested enforcement of the commissionÕs subpoena on the grounds that its issuance and compliance with its demands would unconstitutionally chill the free and private expression of his political views, and the views of his correspondents, about the criminal case, the judgeÕs actions, judicial independence, etc. For that reason, Appellant contends, First Amendment principles require that the state convincingly demonstrate that there is a substantial relation between the information contained in his privately expressed political views and a compelling and overriding state interest. Amicus writes to express support for the positions taken by Appellant. ARGUMENT I. IMPOUNDMENT OF APPELLANTÕS PLEADINGS WOULD CONSTITUTE A PRIOR RESTRAINT ON SPEECH, AND THE MEDIAÕS AND THE PUBLICÕS RIGHT TO KNOW, GUARANTEED BY ARTICLE XVI OF THE MASSACHUSETTS DECLARATION OF RIGHTS AND THE FIRST, FOURTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES. Amicus is gravely concerned by the ironic and unconstitutional circumstance that litigation commenced by Appellant in order to vindicate his rights of free speech and privacy has thus far been held in secret. As a result, the press and the public have been kept from obtaining truthful information about the instant litigation between Appellant and the Commission on Judicial Conduct. Surely the Single JusticeÕs order prohibiting even Appellant from filing for the public record, and from disseminating to the news media and to interested citizens, copies of his own briefs and supporting documentation, is an overly broad application of the confidentiality provision of statute or rule. The impoundment order unconstitutionally censors and infringes upon AppellantÕs ability to inform the press and the public of the exact nature of his legal and factual contentions, and exactly how and why he has joined his wife as a target of overzealous investigators and critics. Appellant has a constitutional right to use copies of his pleadings to enlist public support for his cause of privacy and freedom of speech. This is particularly true for so much of his pleadings as do not reveal non-public information which Appellant derived exclusively from the commission during the litigation. To the extent that the impoundment order bars the dissemination of specific items of information that are protected from disclosure by law, the impoundment order is overly broad. The United States Supreme Court has held that the publicÕs right to know the publicÕs business is of paramount importance, and even in the face of national security claims by the government neither the courts nor the government has the power to issue prior restraint orders against the publication of documents in government files. New York Times Co. V. United States, 403 U.S. 713 (1971) (the "Pentagon Papers" case). The publicÕs right to know is paramount, even, to interests that one or another party might assert to fairness or reputation. See Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) (unanimous holding that gag order is prohibited where press sought to publish confession of one accused of murder and necrophilia, even where accusedÕs right to fair trial was said to be at stake). Indeed, in the Nebraska Press Association case the Court observed that, far from causing unfair trials, the press often prevents miscarriages of justice by subjecting trials to extensive public scrutiny. Here, Appellant has been deprived of his right to have the public read his legal and factual arguments and compare them with the CourtÕs rulings. The public was denied its right to view the CourtÕs ruling in light of AppellantÕs arguments and, should it be offended, its right to protest or to petition the legislature for redress of grievances in the form of corrective legislation. The impoundment order prevents the public from reading the AppellantÕs arguments against the CommissionÕs efforts to peer into his private e-mails. Under the Supreme CourtÕs principles, the state must provide an overwhelming justification that prevents copies of AppellantÕs pleadings from being read by the public and media. There can be no question but that the publication of truthful information about the various contentions that are laid out in the pleadings in this case Ñ and, at the very least, in AppellantÕs pleadings Ñ is a legitimate matter of public importance and interest. Bartnicki v. Vopper, ___ U.S. ___, 121 S.Ct. 1753, 1765 (2001). II. E-MAIL AND PRIVACY Appellant has a legitimate expectation of privacy in his e-mail communications. Had he written and received letters via first class mail, the contents of these communications would be secure by law from peering eyes, and from any requirement that he identify that it was he who sent or received certain communications. Lamont vs. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493 (1965). There is no reason that e-mail should not be entitled to the same assiduous protection. Indeed, federal law, both statutory and constitutional, has been moving in the direction of not making gratuitous distinctions, in terms of the citizenÕs First and Fourth Amendment rights, between "old media" and newer electronic media. See Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2520 and 2701-2709 and, particularly, the Privacy Protection Act, 42 U.S.C. § 2000aa which, except in very restrictive circumstances, protects from search and seizure, among other forms of communication, e-mail used by publishers for First Amendment activities. The invasion of privacy demanded by the commissionÕs subpoena is a very fundamental and pervasive one, and should not be countenanced unless the state demonstrates overriding and compelling bases for the subpoenaÕs enforcement. Respectfully submitted, Cindy Cohn, Esquire California SBN 145997 Legal Director, Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Tel: (415) 436-9333 ext 108 Fax: (415) 436-9993 December 12, 2001 COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SUFFOLK COUNTY No. SJC-08633 IN RE: ENFORCEMENT OF A SUBPOENA MOTION OF ELECTRONIC FRONTIER FOUNDATION TO FILE BRIEF AS AMICUS CURIAE The Electronic Frontier Foundation ("EFF") moves this Court for leave to file its brief as amicus curiae in support of AppellantÕs contentions opposing enforcement of a subpoena demanding disclosure of his electronic mail correspondence concerning matter of political and private concern. The original and copies of the brief are submitted with this motion. EFF is a non-profit, member-supported civil liberties organization working to protect rights in the digital world. EFF actively encourages and challenges industry, government and the courts to support free expression, privacy, and openness in the information society. Respectfully submitted, Cindy Cohn, Esquire California SBN 145997 Legal Director, Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 Tel: (415) 436-9333 ext 108 Fax: (415) 436-9993 December 12, 2001 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing motion and accompanying brief of Electronic Frontier Foundation as Amicus Curiae have been served by send same by first class mail this 12th day of December, 2001 to the following: Paul F. Ware, Esq. Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 Michael E. Mone, Esq. Esdaile, Barrett & Esdaile 75 Federal Street Boston, MA 02110 M. Robert Dushman, Esq. Brown, Rudnick, Freed & Gesmer, P.C. One Financial Center BR> Boston, MA 02111 ______________________________ Cindy Cohn (California SBN 145997)


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