Wednesday, March 14, 2012

Live Streaming Court Proceedings And The First Amendment

A decision issued today from the Massachusetts Supreme Judicial Court:

On May 2, 2011, as part of a pilot project it has named "OpenCourt," WBUR-FM, a National Public Radio station in Boston, began to broadcast live by "streaming" over the Internet video and audio recordings of certain proceedings taking place in the Quincy Division of the District Court Department (Quincy District Court). We consider here three petitions for relief under G.L. c. 211, § 3, that relate to the OpenCourt project and were reported to this court by a single justice. Each petition challenges one or more orders of a judge in the Quincy District Court concerning the broadcasts and online posting of particular proceedings in two different criminal cases. In the first case, the Commonwealth appealed from the judge's order permitting OpenCourt to "post" to its public, online archives an audio and video recording of a criminal dangerousness hearing conducted pursuant to G.L. c. 276, § 58A.  The Commonwealth argues that the judge abused his discretion and failed to protect the alleged minor victim's privacy. OpenCourt has brought a separate petition for relief in the Barnes case, challenging the judge's orders that required OpenCourt to redact the alleged victim's name from the recording and to stay temporarily public access to the online archive. As explained infra, OpenCourt has an internal policy prohibiting publication of the names of minor victims of sexual assault and does not wish to publish the name, but objects to the court order; OpenCourt's argument is that any restriction on its right to publish the recordings constitutes a prior restraint that violates the First Amendment to the United States Constitution.

Charles Diorio brought the third petition for relief. He appeals from orders permitting the broadcasting and public online archiving of both his July 5, 2011, arraignment in the Quincy District Court, and a motion hearing held on July 25. Diorio contends that the judge abused his discretion and prejudiced Diorio's constitutional right to a fair trial by allowing the hearings to be broadcast and by not requiring the recordings to be removed from OpenCourt's online archives.

We conclude that any order restricting OpenCourt's ability to publish--by "streaming live" over the Internet, publicly archiving on the Web site or otherwise--existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. Finally, we exercise our discretion pursuant to G.L. c. 211, § 3, to request that the Supreme Judicial Court's judiciary-media committee submit for this court's approval a set of guidelines for the operation of the OpenCourt pilot project.

The case is Commonwealth v. Barnes. (Mike Frisch)

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