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I have a hearing in Norfolk Superior Court today (Dedham) to review the conditions of bail, which prevent me from reporting on the 8 “witnesses” I’m being charged with intimidation. The hearing begins at 3 and is open to the public. It will be streamed on Canton Television, which you can view here. All are welcome to attend. I submitted an affidavit explaining how my rights are restricted as a result of the unconstitutional stay away orders issued by Judge O’Malley in Stoughton District Court at my arraignment. In response self-described “trophy husband” Ken Mello has filed a memorandum in opposition to the stay away orders being lifted. We covered this extensively on last night’s Live Show.Kearney - Reply Memorandum (1) 2
There are many things wrong with Ken Mello’s filings. I am not a “self described” award winning journalist. I have in fact won several awards from other established media entities for my journalism.
Mello claims my reporting on the Karen Read case became “vitriolic.” Vitriolic is defined as “filled with bitter criticism.” I am writing about the coverup of the murder of a Boston Police Officer – it should be filled with bitter criticism of the government.
Mello claims my reporting “crossed the line of journalism.” He fails to realize that I am a journalist, an activist, and a satirist. When I am writing stories and interviewing witnesses I am acting as a journalist. When I hold peaceful protests I am acting as an activist. When I do impressions on the TB Live Show I am acting as a satirist.
Mello claims I “videotaped the interior” of Jen McCabe’s home.
The video shows that I rang her doorbell while she left the door wide open, stood there for 2 minutes waiting for her to answer, said into the Ring doorbell that “I am not here to threaten you,” and then left. There were not any “no trespassing” signs, and reporters knocking on the doors of subjects they are reporting on has been happening for decades, so nothing I did was illegal.
Mello claims I “led motor vehicle caravans past the homes of witnesses.” Driving cars on public streets is not illegal.
Mello claims I “harassed witnesses at sporting events in which children of witnesses were participating.” Judge Walsh already ruled that it was not “harassment” for me to show up at a public event and ask questions pertaining to a story I was working on. No children were in the immediate area, and it wouldn’t matter if they were.
Mello claims that I “harassed witnesses at their place of business.” To the contrary, I stood outside of D&E Pizza on a public sidewalk and peacefully protested Chris Albert’s family’s involvement in the murder of John O’Keefe. I was specifically invited there by one of Albert’s employees, who is rude.
Mello claims that I “followed witnesses while yelling at them through bullhorns.” This is a complete lie. There is not a single video or shred of evidence depicting me doing that.
Mello cites the picketing and witness intimidation statutes, but fails to point out that at no point did I ever use threats or intimidation to attempt to interfere with, obstruct, or impeded the administration of justice. In fact, my reporting and activism did the opposite – I repeatedly stated that I was NOT a threat, and encouraged all parties involved to tell the truth. This is the opposite of witness intimidation.
In his argument Mello cites case law that he claims shows that there is precedent for silencing speech, but the case law he chose is not relevant or comparable to what I allegedly did. He cites Chaplinksy vs. New Hampshire to argue that speech that has been used as an integral part of criminal conduct can be banned. Except my speech has not been part of any criminal conduct.
Mello cites US vs Rondo and Brandenburg vs. Ohio, which he says prevented speech that is “directed to incite or produce imminent lawless action, or is likely to incite or produce such action.” None of my speech was directed to incite lawless action. The Brandenburg case was a landmark decision that overruled the 1919 case of Schenk vs. United States, which ruled that speech could be limited if it was similar to “shouting fire in a crowded theater.” In Brandenburg SCOTUS did the opposite of Mello seems to think they did. In that 1969 case the court determined that the KKK’s speech was lawful. The court specifically ruled that “government cannot punish inflammatory speech unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Mello cites Watts vs. US, as an argument that my speech must be limited if it “inflicts injury or tends to incite an immediate breach of the peace.” But my speech has done no such thing. In the Watts case an anti-Vientam War protester said, “If they ever make me carry a rifle the first man I want to get in my sights is LBJ.” SCOTUS said that banning such speech was constitutional, but only if it contained true threats. My speech has already been determined NOT to contain true threats. However, the court also determined that Watts’ speech was political hyperbole, and not true threats. Clearly my comments towards Colin Albert in which I imitated his own videos were hyperbolic and satirical.
Mello knows that my speech did not overtly threaten any witnesses, so he cited Commonwealth vs. Gordon, which said that threats do not need to be overt to be considered witness intimidation. In this case the father of a defendant in a murder trial intimidated a 19 year old juror INSIDE THE COURTHOUSE, that made the juror nervous, scared, and afraid. He referenced a horror movie in which a girl her age was murdered. This is not comparable because I am not related to Karen Read and did not speak to any witnesses or jurors inside a courthouse. I am a reporter covering the case who happens to believe that the facts show that she is innocent.
Mello knows that I have not prevented any witnesses from testifying, so he cited Commonwealth vs. Robinson, claiming that the statute does not require that the intimidation prevent a witness from testifying – it just has to be the intent. But my stated intent has been the opposite – I want witnesses to testify. I want Jen McCabe to explain why she Googled “how long to die in cold” at 2:27 AM. In the Robinson case the defendant at a magistrate hearing glared at a plaintiff, then pushed over a table in a “blood curling” manner, and yelled “are you sure you want to go through with this?” The plaintiff testified anyway, but the intent was to intimidate. I am not the defendant in the Karen Read case, and I was not intending to stop anyone from testifying. My comments were made in public streets and on YouTube, not in court, and they were not overtly OR covertly threatening.
Mello cites Commonwealth vs. Casiano, in which a defendant pretended to take a picture of an undercover cop testifying against him for selling drugs, and claimed that he was going to post it on the Internet to put his life in danger. The defendant never took any pictures, and there was no evidence the officer was intimidated, but the intent was there. However, I am not the defendant in the Karen Read case, I am a journalist covering the case and a political critic of the government. It was never my intent to stop any witness from testifying.
Mello cites a 2011 paper written by University of Florida law professor Lyrissa Lidsky, who says that audience size increases the chances that one member of the audience will be incited by speech to commit violence. The implication is that because I have a large audience I am responsible for the criminal behavior of the millions of people who have read my stories.
But a paper written by a college professor in Florida is not case law, and I am not inciting any violence. I fundamentally reject the idea that people with large platforms are responsible for the behavior of their followers, and the insinuation that speech should be restricted in order to prevent the “incitement” of violence that never occurred.
Mello cites several examples from around the country, most of which involved unnamed individuals, to make the point that witness intimidation can occur on social media. All of the examples are from the defendants in criminal matters or their families, and include explicit threats posted on social media, which were designed to PREVENT witnesses from testifying against criminal defendants. I am a reporter covering the Karen Read trial, not a family member of Karen Read. I am not posting threats on social media directed at witnesses. I WANT them to testify.
Mello claims that I “doxxed” the witnesses by posting their addresses, phone numbers, workplaces, and financial information online. None of this illegal, but more importantly all of this is already publicly available information in filings of the Karen Read murder case. Chris Albert’s “financial” information mainly involves the dozens of court judgments against him for not paying his bills and his taxes. Additionally, the Commonwealth has ironically posted my address and phone number in their publicly viewable charging documents, leading to an increase in threats I have received since being charged. I have documented these threats with Holden Police.
Mello cites online influencers who “doxed” Supreme Court Justices by posting where they live. He claims that these internet activists intimidated Justices into changing their minds to overturn Roe vs. Wade by urging mobs to go to their homes. But this example proves OUR point, not the Commonwealth’s because none of the protesters or internet influencers were ever charged with witness intimidation, and the protests outside the home of justices were allowed to happen. The only person arrested was Nicholas Roske, who showed up with a gun and written plans to kill Justice Kavanaugh. None of my followers have done anything like this, and even if they did the case law cited by Mello suggests that only the perpetrator should be arrested, not the online influencers who “incited him.”
Mello claims that what I did is comparable to what the people who “doxxed” SCOTUS Justices did, because I “incited many followers of his internet site into confronting and intimidating these witnesses.” However, I never directed followers to visit and harass the homes of witnesses. I did the opposite, urging my readers to remain peaceful and nonviolent. Mello claims that the purpose of me posting addresses of witnesses was to incite followers to confront and intimidate witnesses. He has no evidence of this.
Mello claims the stay away orders in place are similar to 209A and 258E orders that protect victims. Except those exact orders were denied TWICE by judges in Stoughton. Two judges have ruled that my speech regarding Jennifer McCabe and Chris Albert did NOT meet the legal threshold of harassment because it did not contain true threats.
Mello claims that the stay away orders should not be revised because I have no restrictions for reporting news on the Karen Read case or following up investigative leads. This is untrue. I need to attend Board of Selectmen meetings as part of my reporting and cannot do so with the order in place because Chris Albert will be there. Additionally, if more information comes out about Jennifer McCabe’s cell phone, since it is currently under advisement in the SJC, I would like to ask her questions about that. I cannot do so with the stay away order in place.
Mello falsely claims that the judge “specifically noted the defendant was not prohibited from attending court sessions if the witnesses were present.” Judge O’Malley said no such thing. At the 45 minute mark of this video he begins to explain his ruling.
“I am imposing the following conditions – stay away, no contact with each of the main witnesses. Stay away no contact means direct or indirect. That is broad on purpose, and if it comes before me and find that he violated release conditions he is subject to incarceration for 90 days without bail.”
Mello flat out lied when he said that Judge O’Malley stipulated that I could attend Karen Read hearings, regardless of witnesses being present there.
Mello claims I can still go to the Norfolk County DA’s Office, downtown Canton, or Canton Town Hall, as long as the witnesses are not there. This is missing the point. The witnesses can effectively have me removed from any location simply by showing up. Additionally the stay away order does not clarify how many feet I must stay away. Can I stand on the public sidewalk outside D&E Pizza, or eat at the restaurants next door?
Finally, Mello claims I have a history of obstructing town business at select board meetings by harassing Chris Albert. This is completely untrue. I have never even spoken at a meeting, and certainly never obstructed town business. I silently stood in place at a meeting, while holding a sign that reminded those watching of the fact that Chris Albert did in fact kill a man in 1994.
The meeting was not “obstructed” as a result of my silent protest, and Judge O’Malley specifically ruled that my behavior at meetings was protected speech, including using the middle finger.
The First Amendment will be on trial today at 3 PM in Dedham. I have faith that the Constitution will prevail.