Restrictions on live-streaming and archiving of court proceedings may be unconstitutional

Zachary James Levine

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Gaming Law Attorney

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Commonwealth v. Barnes, SJC-11036 and Commonwealth v. Diorio, SJC-11052

On May 2, 2011, WBUR-FM, a National Public Radio station in Boston began broadcasting live streaming video over the internet of proceedings taking place in the Quincy Division of the District Court Department. This pilot project, named “OpenCourt," was quickly the target of two petitions concerning different criminal cases, which challenged WBUR-FM’s right to broadcast and record proceedings without redaction, which may tend to lead to prejudice against the defendants. The related cases were submitted to the Massachusetts Supreme Judicial Court (“SJC"), which ruled 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. Such an order may only be upheld if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

In the Barnes case, the SJC’s ruling lead it to vacate the order of the District Court judge, which had required OpenCourt to redact the name of the minor alleged victim. As OpenCourt had plead in the lower court, however, it has an internal policy of not publishing the names of minors and only challenged the order on the basis that such an order was unconstitutional and wholly unnecessary in light of such policy. Whenever, in the determination of the OpenCourt producer, or the Judge sitting in chambers, portions of a proceeding should not be recorded, the live feed is temporarily interrupted. In addition, recorded feeds are delayed for 2 days before being posted online to allow the producer time to make additional alterations and redactions, if necessary, but all under the discretion of OpenCourt and its internal decision-making body.

The SJC has long recognized that “[i]t is desirable that [judicial proceedings] should take place under the public eye . . . because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). The First Amendment entitles the press and public to be present at criminal trials and preliminary hearings, in most circumstances, and to report their observations of what occurred in the court room. Court rooms may only be closed when the closure is necessary to serve a “compelling governmental interest" and “narrowly tailored" to meet that need. Globe Newspaper Co. v. Superior Court, 457 U.S., 606-607 (1982). While there is no specific right to bring cameras into a court and/or make recordings, if a court allows such a recording (as Massachusetts does), it cannot restrict the use of that media absent a compelling government interest.

The Commonwealth argued that prior restraint analysis should not be applied to the OpenCourt project because OpenCourt was only able to make the challenged recordings of court proceedings through the permission and cooperation of the Quincy District Court. In the absence of a constitutional right to make recordings, the Commonwealth contends that the court retains the ultimate power and authority to direct how OpenCourt may broadcast, archive, or otherwise disseminate the audio and video recordings it creates. Because of the separation between the court and OpenCourt, however, and the specific agreement that was struck, the SJC determined that it could only grant the relief requested by the Commonwealth to protect a compelling governmental interest that is the least restrictive reasonable method to do so. In vacating the District Court’s order concerning the redaction of the minor’s name in Barnes, however, the SJC ruled that no determination had been made, and no evidence submitted or hearing held, on whether such a redaction was (1) necessary, or (2) the least restrictive method available. In the Diorio case, the District Court denied the defendant’s motion to preclude the OpenCourt video of his arraignment and to prevent the archiving of the video on OpenCourt’s website. Once again, the SJC determined that there were a number of less restrictive options available to prevent bias against the defendant concerning the statements recorded in open court.

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