The truth about Portnoy’s complaints

You have crossed the line of tastelessness when even Howard Stern, who has made a fortune personifying tastelessness, says you’ve crossed the line.

That’s what happened yesterday to Barstool Sports owner David Portnoy, a.k.a. el presidente, when the embattled blogger went on the shock jock’s show to talk about the tempest swirling over his posting and crude comments of nude beach pictures of the 2-year-old son of Patriots’ quarterback Tom Brady.

“I saw the picture and, quite frankly, I do think it’s kiddie porn,” Stern told Portnoy, who went on Stern’s Sirius satellite radio show because he thought he had an ally after getting whacked in print and on the airwaves in Boston.

But the question of tastelessness aside, there is a growing controversy about just whose and what rights were violated. First and foremost is the question of whether Portnoy and his site are protected under the First Amendment.

Portnoy, whose blog is rife with profanity, scantily clad women and locker room comments geared for the arrested development crowd, has been claiming to one and all his right as a journalist and his free speech rights to post the photos and his off-color comments that focused on the toddler’s genitalia. But he failed to say until yesterday that he took them down Friday night after a visit by state troopers investigating on behalf of Attorney General Martha Coakley’s office. The news was first reported by the website Deadspin.

But the visit has prompted civil rights lawyers to question the propriety of pressuring a media outlet to quash a story.

“I think it’s a real stretch that this is a criminal matter,’’ Jonathan M. Albano, a Boston lawyer who specializes in media law, told the Globe. “And there’s an inherent element of coercion when civilians are faced with police in uniforms.”

Coakley says her office is “grateful” Portnoy pulled the plug and said the issue is settled as far as her office is concerned. But that doesn’t settle whether Portnoy is protected as a media outlet or even if what he posted was child pornography.

The issue also raises other questions regarding whether sports talk is journalism. In the wake of Portnoy’s vehement defense of his post, sports talk station WEEI banned him from its airwaves. That action is a bit ironic given that not too many years ago, the station’s hosts were righteously indignant when the Boston Globe banned its writers from appearing on the station’s shows because of the repeated offensiveness of some of the hosts.

It also bears noting that WEEI has a contractual – some would say conflict-ridden – relationship with the Patriots and members of the team appear on all the station’s shows during the week. Brady has a regularly scheduled, compensated appearance on the Dennis and Callahan Show every Monday morning during the season, so listeners tuned in to hear what the league’s reigning MVP had to say about the issue.

Turns out, Brady said nothing because he was never asked. The Herald’s Inside Track reveals today that Brady asked the hosts not to go there and so they didn’t. Which raises the question about the interview process and whether it is an infomercial for Brady or a legitimate Q&A. While co-host Gerry Callahan is a Herald columnist, no one should forget the morning show is entertainment, not journalism.

Perhaps the most fitting summary of the maelstrom came from Portnoy himself, who gave a little insight into why he wrote what he wrote and went on Stern to defend himself.

“Truthfully I just wanted the publicity,” he wrote. Now that’s the one truth we can all agree on.

                                                                                                                                                                              –JACK SULLIVAN 


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