Judicial order restricting publication of material in live-streamed court proceeding is unconstitutional

A judicial order that a news organization redact material presented during open court is an unconstitutional prior restraint on publication, Massachusetts’ highest court ruled today.

The state’s Supreme Judicial Court also directed its Judiciary-Media Committee to develop guidelines for the live online streaming pilot project of the National Public Radio station in Boston at the heart of the legal dispute.

WBUR-FM’s OpenCourt program live-streams daily video and audio recordings of proceedings in Quincy District Court, just south of Boston, and posts the footage online two days later. The delay is designed to allow sufficient time for parties to request a redaction of certain information, according to OpenCourt’s guidelines.

OpenCourt describes its mission as “a pilot project that will experiment with how digital technologies can foster the openness of the American courts with the idea that more transparent courts make for a stronger democracy . . . Along with bringing the court online, the long-term goal of OpenCourt is to use our experience in the Quincy District Court to help courts around the country implement technologies and craft digital media policies. To this end, we will be documenting the step-by-step process of wiring the court and creating a forum where those interested in government transparency, the law and technology can connect.”

At issue on appeal were broadcasts from two separate criminal cases in the Quincy court. Commonwealth v. Barnes addressed a trial court’s order allowing the project to post footage from a defendant’s dangerousness hearing during which the name of an underage alleged victim of sexual abuse was accidentally blurted. OpenCourt also challenged the judge’s order to redact the victim’s name from the footage, and to temporarily put on hold public access to the online archive.

Although OpenCourt has a policy prohibiting publication of the names of minor victims of sexual assault and did not intend to publish the name, it objected to the court’s order, arguing that any restriction on its right to publish the recordings constituted a prior restraint that violates the First Amendment, according to the appellate court opinion.

In the second criminal case, Diorio v. Quincy Division of the District Court, a defendant claimed that OpenCourt's broadcast and public online archiving of his July 2011 arraignment, in which he appeared shackled while the court clerk read the charges against him, and a later court appearance violated his constitutional right to a fair trial.

He argued that a court order restricting OpenCourt’s publication of the proceedings was not a prior restraint because the Quincy court’s significant encouragement and support for the project amounted to an exclusive media coverage arrangement with OpenCourt such that its recordings are actually judicial documents that, like any other court filing, may be redacted under certain circumstances.

The appellate court disagreed, noting that OpenCourt and WBUR use their own production staff, OpenCourt retains the recordings it makes on its own web site, rather than a court web site. WBUR, not the court, paid for the equipment OpenCourt needed to secure its audio and video feeds, and OpenCourt records only those hearings that are open to the public and other media organizations.

"OpenCourt’s unique methods derive from its status as a pilot project rather than from an exclusive arrangement with the court. We understand that OpenCourt’s recording of court room proceedings on a daily basis permits a new and different application of our rule and policy generally authorizing cameras in and electronic access to Massachusetts court rooms,” the court said. “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” federal and Massachusetts constitutions."

In the 1976 landmark U.S. Supreme Court case Nebraska Press Association v. Stuart, the Court described prior restraints as “the most serious and the least tolerable infringement on First Amendment rights.” Because of this heavy presumption against the constitutionality of prior restraints on publication, courts may issue them only after finding that such a restraint is necessary to protect a compelling government interest and the least restrictive method to do so — a standard that neither party could meet, the Massachusetts court held.

“We . . . agree that on the record of [the Barnes] 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,” it said. “In the Diorio case, we . . . agree with the judge that there was no substantial likelihood of harm to Diorio’s fair trial right, because the case against Diorio in which identification was at issue took place in another county, and many alternatives to protect the right existed, including juror voir dire and cross-examination during any subsequent trial on those charges.”

Quoting Nebraska Press Association, the court added: “Pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.”

Because the OpenCourt project differs from the traditional media approach to the use of cameras in Massachusetts courtrooms, the court directed its Judiciary-Media Committee to prepare and submit a set of guidelines governing its use to the court for review and approval.

Established in 1995 to “help foster good working relationships and to improve better understanding between the judicial branch and the media, both print and electronic,” the committee publishes a guide to the law governing access to court proceedings and records and sponsors regional conferences for judges, court clerks and members of the media, according to the court’s Web site. It is comprised of state and federal judges, journalists and lawyers, the site states.

Related Reporters Committee resources:

· The First Amendment Handbook: Introduction — Fair trials — National security — Law enforcement investigations

· News: Mass. extends journalists electronic access in courts