Massachusetts Supreme Judicial CourtPrivacy for cops, but not for private citizens

Eleven years ago, an amateur videotape of Rodney King being beaten by Los Angeles cops touched off a national debate over police brutality.

One year ago, the Massachusetts Supreme Judicial Court issued a ruling that said in effect, We’ll have none of that here, thank you very much.

In a decision issued last July, the SJC ruled that Michael Hyde had broken the law when he audiotaped four Abington cops during a traffic stop in 1998. The officers verbally abused Hyde and used vulgarities; later, Hyde brought the tape to the Abington police station to file a complaint. Incredibly, he found himself charged with illegally violating the cops’ privacy. The justification was that Hyde had broken a 1968 law governing police wiretaps. But the effect was to make it more difficult for citizens to protect themselves against out-of-control cops. Both the Boston Globe and the Boston Herald editorialized against the decision.

Chief Justice Margaret Marshall got it right in her dissent, saying, "We hold police officers to a higher standard of conduct than other public employees, and their privacy interests are concomitantly reduced.... It is the recognition of the potential for abuse of power that has caused our society, and law enforcement leadership, to insist that citizens have the right to demand the most of those who hold such awesome powers."

Nearly a year after demonstrating perverse solicitude for the privacy rights of public servants performing their public duties, the SJC stood logic on its head once again — this time ordering a private citizen to turn over his private e-mails to assist officials who were investigating his wife.

In March, Phoenix publisher Stephen Mindich was told to comply with a subpoena demanding that he turn over his e-mails so that investigators could determine whether his wife, Superior Court judge Maria Lopez, engaged in an improper "whispering campaign" to discredit the victim of Charles "Ebony" Horton. The full court’s March ruling affirmed a decision by SJC associate justice Francis Spina last October that not only ordered Mindich to turn over his e-mail to the court, but shrouded all court documents related to the matter in secrecy. (The background: in September 2000, Lopez handed Horton a controversially lenient sentence of probation and home detention for attempting to rape a 12-year-old boy. The case became a cause cŽlŹbre, in part because television cameras caught Lopez angrily berating the prosecutor.)

"The fact that the government is being given the green light to peruse the private e-mail of one of our fellow citizens should have prompted a storm of outrage, no matter what we may feel about Judge Lopez’s behavior or that of her husband," the Boston Herald’s legal-affairs columnist, Maggie Mulvihill, wrote of Spina’s ruling.

And in its April 1 issue, the Weekly Standard published an essay on the case by George Mason University law professor Peter Berkowitz that began, "Free speech, fair process, and judicial independence are under assault in Massachusetts." Berkowitz was particularly incensed by Spina’s decision — again, affirmed by the full SJC — to seal all papers in the dispute over Mindich’s e-mails, even those pertaining to whether the papers themselves should have been sealed.

"In fact, there seems to be only one party that benefits — or might conceive itself as benefiting — from secrecy in the case of Stephen Mindich’s Supreme Judicial Court challenge, and that is the Supreme Judicial Court," Berkowitz wrote, adding: "Precisely in a case where the court is most in need of public accountability it has evaded that accountability."

After having earlier vowed to appeal to the US Supreme Court, Mindich last week turned over the e-mails rather than be held in contempt. In a written statement, Mindich said there was only a "minuscule" chance that the Supreme Court would hear his case, adding: "Consequently, I now find myself with no practical choice except to obey a patently unconstitutional order. There is nothing in my e-mails of which I and my correspondents are ashamed, nor have I said anything false about the persecution of my wife."

Greta Holman, Provincetown officialHas a thing for Naked Boys

Provincetown licensing agent Greta Holman is not an incorrigible bluenose. When she received a complaint from a man last summer who was offended by the full frontal nudity in the musical Naked Boys Singing, she told Bay Windows that she asked him, logically enough, why he’d attended in the first place. And she never seriously tried to shut down the gay revue — which features, among other things, songs about circumcision and the embarrassment of getting an erection in the locker room.

Holman did, however, pursue an anti–First Amendment battle against the show all last summer, entangling the Crown & Anchor — the hotel-and-restaurant complex where Naked Boys Singing was appearing — in a licensing and zoning mess that has yet to be completely straightened out.

Holman cited the Crown & Anchor for violating the town’s adult-entertainment ordinance by not applying for a special license. She reportedly issued more than 30 tickets to the Crown, at $100 a pop, for continuing to show Naked Boys Singing.

At the same time, though, Holman said the Crown couldn’t obtain such a license even if it applied, since it would run afoul of a state law forbidding adult entertainment within 500 feet of a church — in this case, the Unitarian Universalist Meeting House. Yet Bay Windows noted that the minister of that church, the Reverend Alison Hyder, had written a letter to Holman and other town officials saying that she found Naked Boys Singing to be "charming and enjoyable." Hyder added that Holman’s repeated cease-and-desist orders "infringe on the freedom of speech and personal expression that we hold dear."

In the end, the Provincetown Licensing Board backed down, voting in early September to drop its case against the Crown & Anchor, and to take no action to force the Crown to pay all those $30 tickets. But it’s not over. In April, Provincetown town-meeting members voted to uphold a local ordinance regulating live nude entertainment. And last month, the Provincetown Banner reported that Crown co-owner Bill Dougal had resigned his position on the town’s finance committee so that he could file a lawsuit against the town seeking to invalidate that ordinance.

The battle flies in the face of Provincetown’s reputation as a progressive, gay-friendly haven. As Ben Winters wrote in a piece for In These Times last October: "There [is], alas, no shortage of municipalities in the United States where the citizenry might be expected to revolt if confronted with an all-nude, all-gay musical revue in their midst. Topeka, Kansas, let’s say, and probably Salt Lake City, and wherever Trent Lott is from. But Provincetown, Massachusetts?"

Of course, in Provincetown it wasn’t the citizenry that revolted — just Greta Holman and a few other officious types. But that’s all it took to stain the town’s reputation.