‘Brady test’ on child pornography

To Coakley, the happy ending justifies the chilling means of having police knock on Portnoy’s door. But some First Amendment specialists argue that the AG’s office intimidated Portnoy into surrendering his free speech rights. Jonathan M. Albano, a Boston lawyer who specializes in media law, told the Globe “it’s a real stretch that this is a criminal matter. And there’s an inherent element of coercion when civilians are faced with police in uniforms.’’

Harvey Silverglate, who specializes in civil liberty and First Amendment issues, offers another perspective on law enforcement’s knock on the door. Based on what he has heard about the photograph (but did not personally see), he believes the posting was prosecutable. Case law, he said, has upheld criminal prosecutions “where the person taking the photo zeroes in on the sexual organs to call attention to the genitals.’’ Since the blogger not only posted such a photo, but made sexually suggestive comments which focused attention on the child’s genitals, “that puts him in dangerous territory.’’

So, said Silverglate, in choosing not to go forward with a criminal prosecution, Coakley did Portnoy a favor - and also did one for Benjamin Brady. It would not have been in the child’s interest, he argues, to be part of a criminal prosecution destined to turn into a circus because of his famous parents. Win or lose, the case would establish “the Brady test’’ for what constitutes child pornography - a heavy burden for any child, he said.

But, would any child’s sensibilities be factored into such a decision? Or just Tom Brady’s child?