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SOME THOUGHTS THE DAY AFTER … JUDGE VACATES GAG ORDER IMPOSED ON THE PLANET … FIRST AMENDMENT AND FREE SPEECH WIN THE DAY IN DISTRICT COURT

By DAN VALENTI

PLANET VALENTI News and Commentary

(FORTRESS OF SOLITUDE, JULY 9, LATE IN THE EVENING, THEN LATER THE NEXT DAY, JULY 10, 2012) — There will be much, much more to say about our day in court yesterday, and as much as THE PLANET is eager now-and-pronto to write volumes on this, we must catch up with what we missed.

If not for the little matter of defending the First Amendment in court, we would have been working on our regular case load. Right now, we have eight newsletter stories due, five magazine pieces, and a couple of long web pieces to write, all before the end of this month. We would have knocked one or two off yesterday but couldn’t, and so we must now double up.

That being said, let THE PLANET offers these additional initial comments on Nilan v. Valenti, decided in our favor by Judge Mark Mason yesterday in a grinding, deliberate all day hearing in Pittsfield District Court in Pittsfield, Mass.

THE TERMINATOR — At the end of the day, after Judge Mason made his decision and after our press interviews (National Public Radio, iBerkshires, and the Berkshire Eagle) were finished, the last thing we did was report to the District Court office, where we obtained Judge Mason’s “Modification, Extension or Termination of Harassment Prevention Order GL c. 258E, Docket No. 1227R0235.”

Box F was checked: “PRIOR COURT ORDER (ATTACHED) TERMINATED.” Two important sentences follow: “This Court’s prior Order has been terminated. Law enforcement shall destroy all records of such Order.” Judge Mason thus voided, vaporized, and otherwise disintegrated the action granted on June 27 to Meredith Nilan by Judge Bethzaida Vega. The court’s decision yesterday was more than just placing the Star Trek “cloaking device” on Judge Vega’s original order. The termination order blasted the gag order out of existence with phasers set on maximum power.

LAWYERED UP — THE PLANET must recognize the brilliant work done by our legal team of attorney Rinaldo Del Gallo of Pittsfield and Bill Newman, director of the ACLU’s regional office out of Northampton. Del Gallo and I talked on Monday last, met on Tuesday (when THE PLANET hired him), and by Friday, we had nearly 100 pages of material in response to Nilan’s application for the initial order. This consisted of the affidavit we wrote on our behalf and the brief submitted by attorney Del Gallo.

I knew I could handle my affidavit, which consisted of five parts: how we got involved in the original story relating to the Dec. 8, 2011 incident in which Ms.  Nilan’s SUV crossed lanes, struck, and nearly killed pedestrian Peter Moore; our professional experience; a word about the purpose of PLANET VALENTI; a point-by-point rebuttal of Nilan’s application for the restraint order; and a summation. I had faith and only that in attorney Del Gallo’s legal acumen, since I had no direct experience working with him. He came with a good reputation from people whose opinion I respect. That faith was well placed. He demonstrated an insightful understanding of applicable case law — the statutory laws of the Commonwealth on harassment and the federal First Amendment and constitutional issues. He also worked hard and well in preparing an involved, complicated brief under pressure with little time to spare and no room for error.

Mr. Newman provided the full resources of the American Civil Liberties Union in standing with us in an amicus role. Attorney Newman helped draft two motions on our behalf. The first was to request of Judge Mason permission to participate in our defense. The second was a brief handling the relevant case law. Again, the work was precise, relevant, and utterly convincing. Del Gallo and Newman argued the facts, and the facts won out. Del Gallo has the more forward, aggressive style. Newman’s is more measured and studious. It was the perfect combination.

We also received legal help from Needham attorney Terence Noonan; Prof. Eugene Volokh, First Amendment specialist, UCLA Law School; attorney Ken White, noted First Amendment commentator; attorney Kathryn Noonan, and — well, if there were more, we apologize, because we don’t want to leave anyone out.

‘THIN ICE’ — Judge Mason delivered a unanimous victory to THE PLANET. In reference to one phrase at the end of one particular posting, he said we were on “thin ice” regarding First Amendment protection under freedom of speech and freedom of the press. That’s a single-digit number of words out of the one million we’ve published since late September 2010. That includes every word we’ve written about the Nilan-Moore case. Not a bad batting average. The “thin line” that Dan Valenti may walk — and should walk as a writer doing his job —  is underlined by a miles wide platform: the 45 words contained in the First Amendment.

IT WAS BROKEN, AND WE BROKE IT — Make no mistake about this. THE PLANET broke this story, not the Berkshire Eagle, as the paper claims today. Not counting postings on Topix-like sights, THE PLANET had to first story on Nilan-Moore. The Eagle then followed. They presented a sanitized version of the case. We presented more the truth of the case. In fact, the Eagle had the chance at this story first and whiffed. That same material, including photos, were then offered to us. By then, we had accumulated enough corroborating information to judge the information good. We published and we stayed on the story. The longer we stayed with it and the more oddities we uncovered (for example, the story unreported by the mainstream media for more than a month, magistrate Byrnes’ initial hearing that barred Peter Moore and his attorney only to dismiss the case, the inconsistencies in Ms. Nilan’s story, etc.), the more aggressive the Eagle got in response. Actually, we thought on Nilan v. Valenti, Andrew Amelinckx did fine work, overall.

CROSS-TOWN TRAFFIC — Hits on PLANET VALENTI are registering the widespread coverage of this case. We will be looking at record volume before the day is out. The irony is that Ms. Nilan’s court actions against THE PLANET resulted in a quantum-leap growth in spreading the story of the incidents of the night of Dec. 8. We’ve granted interviews for a bunch of media outlets, the latest being a sit-down with Brandon Walker of YNN News. His report will air tonight on Channel 9. Professor Volokh, First Amendment scholar at UCLA Law School, shall be writing about Nilan v. Valenti in a law journal article. This interest testifies to the significance of this story and shows the colossal misunderstand Nilan had of basic civics. Pity they don’t teach it any longer in school. She testified in court yesterday that in her mind, Nilan v. Valenti wasn’t about journalism  or the First Amendment but about her feelings. The rest of the nation differed.

MORE LATER. KEEP CHECKING.

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THIS WAS OUR POST FROM LATE LAST NIGHT, JULY 9, 2012

We won.

That’s the most appropriate two-word summation of what took place in District Court today in Meredith Nilan v. Dan Valenti.

A quick point here. It’s been an exhausting (and exhaustive) day, beginning at 9:30, when we met with our attorneys — Rinaldo Del Gallo and the ACLU’s Bill Newman. We were in court from 10 a.m. to just before 4 p.m., more than half of that actual court time. After the Judge Mark Mason‘s decision supporting our response to an egregious assault on our First Amendment rights, we did several media interviews. Then we had to hoof it to class, where, from 5:30 to 8:05 p.m., we were in lecture mode. THE PLANET’s point is that we’ve not had time to microwave a pop tart.

Obviously, we are delighted in the outcome of today’s lengthy hearing. We see this not so much as a victory for Dan Valenti, not so much a vindication for the practice of journalism as found here on PLANET VALENTI, but a victory for the First Amendment. It is a victory for every reporter, writer, blogger, journalist, commentator, opinionist, newscaster, talk show host, presenter, pundit, and talking head to makes it their business to offer news and commentary on relevant (and even irrelevant, we suppose) issues of public and community concern.

There won’t be any dancing in the end zone. We won’t gloat. We will, in the words of the great Jim Brown, “act like [we've] been there before.” THE PLANET will, however, be thankful and jubilant that as a result of this case, freedom in America today is a wee bit stronger. THE PLANET didn’t go looking to be the poster child for sticking up for free speech and freedom of the press. When the fight came our  way, though, we were humbled at the chance that we were being asked to stand for cherished, time-honored rights — the envy of the world — that so many men and women gave their all to uphold.

Now, with your indulgence, oh my brothers and sisters, we best getting tucked in for a bit of well-earned rest.

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FROM OUR BEACON HAND GLOWS WORLD-WIDE WELCOME FOR GLORIOUS FREEDOM.

“OPEN THE WINDOW, AUNT MILLIE.”

LOVE TO ALL.

 

111 Responses to “SOME THOUGHTS THE DAY AFTER … JUDGE VACATES GAG ORDER IMPOSED ON THE PLANET … FIRST AMENDMENT AND FREE SPEECH WIN THE DAY IN DISTRICT COURT”

  1. Still wondering
    July 11, 2012 at 6:13 am #

    It looks to me like the Nilans were trying to punish DV by making him pay money for legal representation. If you will notice, Dan kept the fees to a minimum. (Well done!) So, this chapter of the saga is over. Next up is the civil suit by the person who paid the most – the true victim, Peter Moore.

  2. GMHeller
    July 11, 2012 at 7:15 am #

    Mr. Valenti,
    It is truly laughable for anyone at The Berkshire Eagle to claim that the paper got the story out first when, as we all know, the accident, which nearly claimed Peter Moore’s life, took place the evening of December 8th, 2011, in the wake of the Berkshire Young Professionals drinkfest at Allium Bar in Great Barrington.
    The Berkshire Eagle, which usually reports on motor vehicle accidents within 24 hours of their occurrence, did not see fit to report on this particular accident until ONE MONTH later, on January 7th, 2012 (this despite running a photo of Peter Moore in the Eagle about two weeks after the accident but only in relation to a story about automation in hospital prescription delivery to patients).
    Within days of the accident on Winesap Road, there were multiple threads on Topix, many of which have since been inexplicably deleted.
    One was entitled “Winesap Road — Hit and Run” and drew dozens of posted comments.
    One of the first posters on any of those Topix threads was ‘Bonnie’, who along with a multitude of other Topix posters (including ‘Molly’) should be credited with asking the probing questions that would not let the story go away.
    Let’s be honest, were it not for all those Topix posters, would The Eagle have even published the article that appeared January 7th?

  3. GMHeller
    July 11, 2012 at 7:21 am #

    SEE: ‘What happened to the “Hit and Run on Winesap” thread?’

    http://www.topix.net/forum/city/pittsfield-ma/TEEPSEAQ3EV5I2JQH#c2

  4. Max
    July 11, 2012 at 9:17 am #

    Finally someone is standing up for free speech and men! http://manhood101.com

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