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July 19 2011


OpenCourt's Balancing Act: Redacting Sensitive Info vs. First Amendment

OpenCourt, our Knight Foundation-funded project devised to help make courts more transparent, is facing a legal challenge soon to be heard by a judge in the highest court in Massachusetts.

The central issue at stake is a First Amendment question of whether the court can order a news organization to redact material that has been presented to the public in an open courtroom.


On July 8, WBUR, a public radio station, filed a response memo as well as a supplemental affidavit of our executive producer to the state's Supreme Judicial Court.

The documents are the latest in a lengthy legal exchange between the Norfolk County District Attorney's office and Quincy District Court judges over the redaction from the public record of the name of an underage alleged victim of sexual abuse which was accidentally blurted during a suspect's dangerousness hearing two months ago.

Two-Day Delay

OpenCourt publicly live-streams daily video of the court's First Session proceedings and posts the footage after an interim of two days. This delay is to allow reasonable room for redaction requests and to edit video in extraordinary circumstances, according to WBUR's journalistic standards and as outlined in OpenCourt's initial archiving guidelines.

We have not posted the May 27 archive episode at issue, pending the upcoming appeal hearing on Aug. 4 before a single justice of the Supreme Judicial Court, namely Justice Margot Botsford.

As mentioned in our filings, we would have removed from footage the name of the underage alleged victim and any information in court that would identify her, regardless of a court order. Such an order, however, represents a challenge to basic First Amendment press rights, specifically relating to issues of prior restraint. We are obligated as a press entity to clarify that our actions are voluntary and not mandated by the state.

Perhaps the most famous prior restraint case was the New York Times publishing of the Pentagon Papers in 1971. The leaked secret Department of Defense study extensively documented the U.S. government's Vietnam War history. The federal government sought to suppress the information in the documents. However, the Times' argument triumphed when the U.S. Supreme Court ruled that the press had a First Amendment right to publish information important to citizens' understanding of its government's policies.

Preventing Harm

In another case more relevant to ours, our lawyers write that in Nebraska Press Assn. v. Stuart in 1979:

The U.S. Supreme Court reasoned a prior restraint was not appropriate because there were no express findings that harm would occur upon publication. Moreover, there was no demonstrative evidence that other measures would be unable to prevent those harms ... as Mr. Davidow's affidavit sets forth, OpenCourt has taken other measures to prevent exactly the harm that concerns the Commonwealth.

We have every intention of protecting the latter, and over months have constructed guidelines with our Advisory Board, the public, and an open "working group" at the court. The guidelines are a living document.

The outcome of this case will set important guidance for the future operation of this project and others like it. More importantly, it could also significantly shape the legal lens through which the First Amendment is viewed when it comes to emerging technology in general, and specifically towards live Internet video-streaming.

Photo by of gavel by bloomsberries via Flickr.

December 10 2010


Massachusetts to Allow Live Twittering, Blogging in Courts

A big step forward took place this week for Order in the Court 2.0. The Massachusetts Supreme Judicial Court announced a major proposal to change the state's "Cameras in the Courtroom statute", SJC Rule 1:19. Everything you'd want to know about the change is reflected in the name of the new rule. It's now called "Electronic Access to the Courts."

The current "cameras in the courtroom" statute applied to what are now considered mainstream media. Media with prior notification to the court were allowed to record audio, video and still images from the courts. The statute allows for one still camera and one videotape camera in a set position in the courtroom. Members of the media pool the material gathered in court and distribute it amongst themselves based upon mutually agreed upon rules. The court is not involved in the distribution of this material.

The proposed rule takes into consideration the new technological and journalistic realities that currently exist. The rule also expands the definition of media. In addition to mainstream news sources, the new rule allows "organizations that regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public, and to journalists who regularly perform a similar function."

In other words, web news editors, reporters and bloggers would have the same privileges as traditional media outlets. In addition to electronic recording devices like still and video cameras, journalists will be able to use their laptops and smartphones to cover the state's courts. The journalists will be allowed to transmit text, audio and video through these devices allowing them to provide live coverage of the courts.

All members of the media, large and small, would be required to register with the state's chief public information officer. The registration requires that the member of the media comply with the rules outlined in the new statute and that they regularly report news in some form. The statute is intentionally broad in its definition of what constitutes a member of the media and allows the state court's public information officer to make the final determination.

h2. The Making of Rule 1:19

Generally speaking, the writing of new laws is often compared to the sausage making process. As a member of the subcommittee for the state's Supreme Judicial Court Judicial-Media Committee that wrote the amendment to the rule, I can tell you this wasn't the case.

In addition to me, the subcommittee was made up of representatives from Boston's two major dailies, the Boston Globe and the Boston Herald, as well as representatives from the Associated Press, WCVB-TV and Lawyer's Weekly. Representing the state's non-mainstream media was Adam Gaffin, the editor of Universal Hub, one of the city's most prolific and respected news blogs. Also on the subcommittee were state judges, clerks and lawyers representing courts across the Commonwealth.

Here are the three main topics of the discussion over the roughly six months that it took to come up with the proposed rule change.

1. Electronic Equipment
The conversation on this topic focused on the kind of equipment that would be permitted in court. It was quickly agreed that whatever technology that was introduced inside, the courtroom would maintain the decorum necessary for the judicial process to take place. That means turning off the ringers on mobile phones. Laptops are be permitted as long as the sound of a clacking keyboard is not disruptive. Also, an additional camera position will be provided for non-mainstream media so that these journalists can be afforded the same electronic access as their mainstream counterparts. The use of smartphones will be permitted for texting and photographing the activity going on in court.

2. Who is a Journalist?
This discussion was very involved and thoughtful. It was gratifying to see how important it was for all members of the committee to broaden the definition of who would be permitted to cover the courts. In my opinion, members of the court have an unfair reputation for limiting access to court proceedings. The primary concern of the court is that the public's right to be informed does not interfere with the public's right to a fair trial. All the representatives from the court on the committee felt very strongly that what goes on in court is made as public as possible.

Over the course of many conversations, it was determined that a member of the media would have to establish that they regularly cover the courts or cover news associated with court proceedings. The greatest concern on the part of the judiciary is that a party involved with one aspect of a particular case or issue before the court would present themselves as members of the media. The concern of the judges and clerks was that these individuals could potentially disrupt court proceedings. The greatest fear around this issue came from judges who worked in the family court. They have seen cases of husbands coming into the court claiming to be members of the media who attempt to intimidate or disrupt the court's business. The members of the judiciary were concerned that greater access could create an environment that could exacerbate this problem.

3. Registration vs. Certification
Most of this discussion centered around whether journalists would have to register or be certified by the court. It took a while to get consensus on this issue. Members of the legal community and representatives from the judiciary felt it made sense to require advanced certification before a journalist could report from court. They felt this certification process would increase the accountability of the media working in the courtroom. Members of the media felt it would create unnecessary barriers of entry into the courts. The members of the media were concerned with who would be in charge of certification, and the criteria that would be used to grant certification.

Over several meetings, the members of the subcommittee agreed that registration would be a more streamlined process. Many of us on the committee envisioned the process as similar to how one registers to use a new piece of software. An individual would be required to provide contact information, to demonstrate that they are acting as a legitimate member of the media, and agree to comply with the rules that preserve the rights of individuals before the court. Though the registration process seems like a distinction without much of a difference from certification, the subcommittee agreed that it would increase access to the courts, which after all was the purpose of this rule in the first place.

Now What?

The proposed rule to change Rule 1:19 now is open to public comment until January 28, 2011. You can register your thoughts in the comment section of this blog, but you should also let the courts know how you feel about the proposed rule by going here.

In my next post, I'll write about the impact the amended Rule 1:19 will have on Order in the Court 2.0. You can get a preview of its impact on the project in an interview I did with Lawyers Weekly. You can can also read related coverage from WBUR.

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