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Rule 1:19 Subcommittee’s biggest challenge was defining ‘journalist’

After the Massachusetts Supreme Judicial Court approached the judiciary-media committee a few years ago requesting recommendations for updates to Rule 1:19, the Rule 1:19 subcommittee focused in on two fundamental points, said Neil Ungerleider, who co-chaired the subcommittee with Justice John Curran, now retired from Leominster District Court.

“One is that the nature of who is a journalist has changed, and secondly, the change in technology has allowed the use of electronic equipment in a way that was never before possible, and how if at all were we going to accommodate that,” Ungerleider said in a March 12 interview. “The second part was actually a little easier to deal with than the first part, the question of electronic access … The larger issue became deciding who is a journalist, and how was some order going to be brought to that process so that the people who claimed to be journalists actually were, as opposed to people just showing up off the street saying they were a journalist.”

Ungerleider, the general judiciary-media committee co-chair and the manager for WCVB-TV Digital, said it was important to extend access to citizen journalists. He sees professional and citizen journalists as the same.

“There really shouldn’t be a difference,” he said. “They [professional journalists] may reach more people, but why is a reporter for the Boston Globe more important than someone writing a weekly community blog or column or runs a community website in Winchester? Why should that person be less important? It’s kind of contrary to the First Amendment, if you will. Freedom of the press applies to everybody.”

Massachusetts has historically been progressive when it comes to cameras in the courts, having the original Rule 1:19 on the books since the 1980s, Ungerleider said. The subcommittee therefore tried to make the language in the rule as inclusive as possible, to define “even the smallest journalist,” he said.

Ultimately, the SJC approved a rule defining the “news media” as “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 in any medium, whether print or electronic, and to individuals who regularly perform a similar function.”

Taking that view, the Rule 1:19 subcommittee then debated how to accommodate journalists of all kinds, Ungerleider said. Some subcommittee members favored a credentialing process, especially expressing fears that gang members could intimidate witnesses, he said. The subcommittee eventually chose a registration approach instead, requiring news organizations and citizen journalists to fill out a form and submit it to the Public Information Office.

“There is that safeguard, if you will, that the registration process was designed to put in place so that a gang member can’t bring an iPhone into the courtroom,” he said. “A reporter can because they’ve showed the registration when they go in if they’re asked for it.”

Since the updates went into effect in September 2012, Ungerleider has said he’s seen a positive reception from WCVB-TV readers and viewers who can get live updates from the courtroom. Since reporters can use electronic devices such as laptops, cell phones and tablets in reporting from the courtroom, live blogging and Tweeting a trial as it is in progress can put news consumers in the middle of the judicial proceedings as they happen.

“The ability of our reporters to do that is very much welcomed and appreciated on our website because [readers] come … in pretty significant numbers,” Ungerleider said. “The expectation on the part of people who are looking for news has changed. They expect it in real time. They expect it with immediacy. They expect it when it’s happening. And the rule change has allowed us to do that.”

The ability to live blog judicial proceedings is somewhat unique to Massachusetts, Ungerleider said. Blogging, citizen journalism of proceedings and other new reporting ventures possible thanks to technology have transformed Massachusetts reporters’ expectations of covering the courts.

Additionally, the updates to Rule 1:19 coincidentally lined up with the emergence of Twitter and live blogging in reporting, coming at “just the right time,” he said

“It’s easy for reporters who work in this state to forget that the access that they have is really unique and that while some states have cameras, this may be one of the few of only states that allow the use of the electronic devices,” Ungerleider said. “That’s something that’s not happening anywhere else in the country. So this is a very unique set of circumstances that exist in this state.”

Camera use in federal courtrooms

The media’s use of technology has evolved since the ‘60s, but on the federal level, courts have struggled to keep up with the rapidly changing industry. The courts are naturally more slow-moving than the media, whose success hinges on having the latest information as soon as possible. Even today, the use of cameras in federal criminal courtrooms of all levels is strictly prohibited, except in the Second and Ninth Circuit Appeals courts and in rare pilot programs the federal system has implemented, once in the ‘90s, and once again for  a three-year trial period starting in 2011 in 14 federal district courts.

I’ve previously explored the U.S. Supreme Court’s extreme hesitancy to allow use of cameras during the ‘60s, but one particular case deserves reexamination from that post.

In the 1965 case of Estes v. Texas, the court threw out a conviction because a trial judge had allowed about a dozen reporters to videotape a pretrial hearing. The U.S. Supreme Court played up the self-consciousness cameras can create for everyone involved – lawyers, judges and witnesses posturing to the camera, trying their best to impress rather than to get at the truth. At that point in time, 48 state courts and the federal courts had banned camera use in courtrooms.

The use of cameras in the criminal courtroom is an inherent denial of due process, the court said:

The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public … We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial.

The court refused to consider the possibility of a future where camera usage did not automatically render a judicial proceeding inherently unfair. Instead, the court wrote, “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”

But in the next decades that followed, camera technology rapidly improved and even American ownership of televisions increased dramatically.

This set the scene for the 1981 U.S.  Supreme Court decision Chandler v. Florida. A criminally convicted defendant challenged a Florida state law that allowed camera usage in criminal courtrooms, charging that camera use had resulted in an unfair trial.

Upon decision, the Supreme Court declined to directly overturn Estes, concluding that it “did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process.” But in practice, the court did in fact overturn the spirit of the Estes decision. The court also declined to establish a First Amendment right to use cameras in a criminal courtroom. Instead, the court rooted its decision in the concept of federalism, that federal government and state governments are both sovereign. Painting the decision as a states’ rights issue instead of a First Amendment issued, the court said:

It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene.

Currently every state in the U.S. allows some use of cameras in courtrooms. Mississippi and South Dakota, the last holdouts, changed their camera use policies in 2001. Currently the federal courts allow the public access to audio recordings, and all the 14 district courts (for example, the Northern District of California) have archived copies of some videotaped judicial proceedings accessible online. The federal Cameras in Courts project will last up to 2014, which the Federal Judicial Center will conduct a study of that will determine the fate of camera usage in federal courtrooms in the future.