'Brady test' on child pornography

By Joan Vennochi
Globe Columnist / August 21, 2011

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THE FUROR over the photograph of Tom Brady’s nude son is all about celebrity, not real outrage over child pornography.

A picture of 20-month-old Benjamin Brady playing on a beach in Costa Rica without any clothes was posted on a popular and raunchy website, In the post, blogger David Portnoy crudely remarked about the size of the boy’s genitalia and made references to Brady, the star quarterback of the New England Patriots. WEEI, a sports talk radio station, stoked outrage over the photo, which led Attorney General Martha Coakley to investigate. State Police from Coakley’s office paid a visit to Portnoy’s home and asked him to take down the photo. He did.

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?

The Brady angle, of course, made this story. Paparazzi, who constantly stalk Brady and his supermodel wife, Gisele Bundchen, took the picture of the naked boy on the beach. Portnoy posted it because anything Brady draws eyeballs to his website. WEEI and its audience would not have paid any attention to a photo of a naked non-celebrity child, even if accompanied by sexually suggestive comments. And while Coakley does have a long record of advocacy on behalf of children, it’s an open question whether she would have dispatched troopers, minus the Brady factor.

This story also gave WEEI a chance to whack a competitor who trumps them for crudity. It’s hard to understand why is considered a sports website, but it is. Sports seem like an afterthought, given features like a close-up of a woman’s bikini-clad bottom, accompanied by a provocative query for viewers to name that bottom. You can practically hear the heavy breathing from multitudes of college-age guys when you click on the “hot gallery’’ or “Twitter chick of the week.’’

The website’s combination of gross, moronic, and overtly sexual offerings are a step down in the muck from anything that can be said on the air at WEEI. And it’s all acceptable, protected free speech. No one gets upset about it, except to the extent it threatens their standing in the marketplace. After whipping up anti-Portnoy outrage, WEEI conveniently banned him from its airwaves. He’s unchastened and still posting crude, Brady-connected comments.

The sexual exploitation of children is a horrifying, worldwide criminal problem. Attorney General Eric Holder recently announced indictments of 72 individuals charged in connection with an international child pornography ring. It did not get people talking like one photo of a quarterback’s naked son.

The true “Brady test’’ is how much the world cares about child pornography beyond Tom Brady.

Joan Vennochi can be reached at Follow her on Twitter @Joan_Vennochi.