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OpenCourt scores for press freedom

It was a balmy August day in 2012, and members of OpenCourt awaited the start of a Massachusetts Supreme Judicial Court hearing that would determine the organization’s ability to expand live streamed video coverage of judicial proceedings in Quincy District Court. But more than just OpenCourt’s ability to expand was at stake; if the SJC ruled to allow OpenCourt to expand its live streaming of judicial proceedings, it could be a major win for press freedom in Massachusetts.

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The Norfolk District Attorney (DA) and the Committee for Public Counsel Services (CPCS) had petitioned the SJC to temporarily halt OpenCourt’s expansion into a second room at Quincy District Court pending formation and SJC approval of broadcasting guidelines. The DA argued that OpenCourt’s interim broadcasting guidelines did not offer enough protection to minors and sexual assault and domestic violence victims, while the CPCS feared violations of their clients’ constitutional rights.

So when Justice Margot Botsford issued a memorandum and judgment five days after the Aug. 9 hearing that denied the DA’s and CPCS’s petitions, OpenCourt Executive Director John Davidow felt gratified.

“The idea that prior restraint, that the state could have editorial control over something that had not yet been published, was deeply disturbing, as a member of the media,” Davidow said in a Feb. 11, 2013 interview. “We [at OpenCourt] were pleased, but mostly pleased because we felt like this was a real case of finding the proper balance between the First and Sixth Amendment.”

Though Davidow would’ve preferred to mediate issues out of court, he said the legal challenge actually benefitted OpenCourt.

“Had the district attorney’s office and other folks not objected and we had to prove our case before the SJC and make it clear that what’s public in court is public and the public should have access to it if it is recorded, we never would’ve had that opportunity” to prove the importance of public access, Davidow said. “In many ways it was helpful to get the clarity that came with these suits filed by the district attorney … it made us sharpen our understanding of the issues around it.”

OpenCourt, a pilot project in Quincy District Court for use of cameras in the courtroom under SJC Rule 1:19 run through Boston NPR channel WBUR, started merely as an idea at a media judiciary committee meeting Davidow participated in sometime in fall 2009. As interest in the idea grew, Davidow extensively researched use of cameras in courtrooms around the country, taking time to speak with many judiciary and media law organizations and judicial officers. Davidow submitted a proposal for the project, then named “Order in the Court 2.0,” to the Knight Foundation’s News Challenge as one of 2,364 hopeful applicants. In June 2010, the Knight Foundation announced OpenCourt as one of its News Challenge winners that year. Following approval from the SJC, OpenCourt went live in Quincy District Court on May 2, 2011.

“I think that there were all sorts of concerns initially, that we were going to give up people’s identities, lawyers and prosecutors would act differently because the cameras were on, judges may not accept pleas that they normally would, and … people not willing to come forward because there were cameras in the courtroom,” Davidow said. “All those things never really truly materialized.”

The main issue OpenCourt encountered in its early days was what to do with archival footage. Almost immediately, people challenged OpenCourt on the archives issue, Davidow said, so OpenCourt temporarily shut down access to its archives until it came up with a policy addressing the concerns. It is now OpenCourt’s practice to not post archival footage until two business days have passed so that anyone can express any issues with the posting of the footage. Even after the footage has been posted, OpenCourt will take it down if someone flags the video and explains the issue. Access to archival footage is free to anyone with Internet access who registers with the site.

Currently the project is on a brief hiatus as OpenCourt Producer Val Wang stepped down earlier this month. OpenCourt will resume live streaming in March. For now project members are focusing on another project that follows specific kinds of cases, Davidow said. He also hopes to expand the project, and it wouldn’t surprise him if one day the official court record is video, not audio, recordings.

“There’s a lot of interest from the courts themselves on how to deal with this,” he said. “The courts want to be more transparent. We got our strongest support from the judicial branch. I think there’s this sense of inevitability that Open Court is just somewhat ahead of the curve of where the courts are inevitably going to go.”

Davidow said he is proud of OpenCourt’s vision and what it has done to make the courts more accessible to the general public.

“The founders in this country wanted justice to be done in public,” he said. “You think of the movie ‘To Kill a Mockingbird,’ where the entire town is piled into that courthouse to watch that trial. That’s what the founders imagined. For a long time, the media was there, and they were that bridge to what was going on in the courts as people got more and more removed from it.

“And then, given the realities of where the media is and other technologies, the public became more and more distanced from this major branch of our government … So [OpenCourt] was one small step in bringing the courts forward, leveraging the technology that exists and is continuing to evolve.”

Press access to the criminal courtroom and the right to a public trial

The courtroom has long been regarded as a place that should be open to the general public. American journalists have reported on court proceedings since the early years of the county’s existence.

Perhaps the case that best epitomizes the free press-fair trial conflict is the 1976 case of Nebraska Press Association v. Stuart. A Nebraska trial judge, recognizing that a man on trial for the murder of a family of six and a sexual assault of one would face extreme bias due to the nature of his crimes, ordered a gag order on all members of the Nebraska press. The court order prohibited Nebraskan journalists from printing about the defendant’s prior confession to the crime or even anything “strongly implicative” of the accused’s possible guilt. The order also forced all news media to comply with the Nebraska Bar Association’s Bar-Press guidelines.

A Nebraska appeals court and the state supreme court both upheld the gag order, though the state supreme court narrowed its provisions. The gag order expired once the voir dire process was complete and the jury had been seated.

By the time the Nebraska Press Association’s appeal reached the U.S. Supreme Court, the trial had long been over and the defendant found guilty and sentenced to death. The U.S. Supreme Court decided to hear the case, however, because there was a high chance of a nearly identical situation arising in the future.

In a rare unanimous decision, the Supreme Court overturned the ban entirely, taking a firm stance that prior restraint is “presumptively unconstitutional,” as it had determined decades before in the landmark case of Near v. Minnesota.

Though both press freedom and the right to a fair trial are constitutionally guaranteed and are therefore fundamental and automatically incorporated in state constitutions (by Gitlow v. New York and Duncan v. Louisiana, respectively), the Constitution does not provide guidance as to which is could be considered “more” fundamental. As the court observed in Nebraska Press Association: “It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.”

Calling prior restraint “the most serious and the least tolerable infringement on First Amendment rights,” the court concluded that protection against it should have “particular force as applied to the reporting of criminal proceedings.”

Like in Sheppard v. Maxwell, the court advised alternative measures the trial judge could have taken before going right to suppressing the press, such as a change of venue, delay in trial, extra precaution during voir dire and clear, strong jury instructions.

In 1980 the issue of constitutionality of press access to the criminal courtroom once again arose in the case of Richmond Newspapers v. Virginia. At issue was a blanket ban on press access to the trial of a defendant undergoing his fourth trial for the same offense (his other trials had been declared mistrials or remanded by appeals courts for new trials). The ban appeared to work, as the judge in the fourth trial dismissed the jury and acquitted the defendant.

However, local press appealed the ban on access to the court room, and the U.S. Supreme Court agreed to hear the case, ultimately ruling that the right to a public trial is a fundamental right that the trial judge had outright denied.

The court discussed the lengthy history of the public trial. The public trial isn’t just American or British in nature, but in fact a long Anglo-American tradition. Before the Norman conquest of England, trials were open to the public. The court also quoted written accounts of open trials as far back as 1313. Likewise, the public trial was an important part of colonial justice systems.

“As we have shown, and as was shown in … the Court’s opinion … the historical evidence demonstrate conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open,” wrote Chief Justice Warren Berger in the opinion for the court. “This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.”

Berger also noted in his opinion that the public nature of a trial made it seem fair, promoted governmental transparency and prevented outraged citizens from trying to stage any kind of vigilante attack on a person accused of an especially heinous crime that might incite a community to violence.

The right to attend criminal trials is implicit in the First Amendment, and the right to a public trial is explicitly stated in the Sixth Amendment. Therefore, the court ruled the ban on press access to the criminal courtroom had been unconstitutional.

Other cases that followed widened media access to other proceedings in the criminal trial process: the 1984 case of Press-Enterprise v. Superior Court (also known as “Press Enterprise I”) cleared the way for access to criminal jury selection, and in 1986, Press-Enterprise v. Superior Court (known as “Press Enterprise II”) did the same for journalists’ access to criminal preliminary hearings. In 1984 the U.S. Supreme Court acknowledge in Waller v. Georgia that press access extends to suppression hearings.

Sometimes interests of defendants and interests of the press align. Such is the case in the concept of the right to a public trial. Said the court in Waller, “[T]he explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”

This reflected the earlier sentiment in Richmond Newspapers v. Virginia: “[A] trial courtroom also is a public place where the people generally – and representatives of the media – have a right to be present,” the court said, “and where their presence historically has been thought to enhance the integrity and quality of what takes place.”

An Introduction

The freedom of the press. The right to a fair trial. Both constitutionally guaranteed; both of equal import. When they two conflict, how can courts or others resolve the tension between them?

Pretrial publicity of high-profile criminal cases can bias jurors against the accused, making his or her trial unfair. Yet the First Amendment protects pretrial publicity. The Supreme Court confirmed its presumption of constitutionality in the ’70s, making it extremely difficult, but certainly not impossible, for a judge to issue a gag order of the press. There are other indirect methods of restricting press access to the courtroom that judges can use.

Judges, rather than silencing the media, can impose gag orders on court officials and involved parties if they want to control what goes to the press. If, for example, a lawyer leaks something to a reporter on the condition of anonymity, the judge can subpoena the reporter and demand to know the source of the leak. If the reporter stands by his word and refuses to give up his source, he may be sent to jail or otherwise sanctioned. Grand juries may also compel journalists to testify if they have witnessed the commission of a crime firsthand.

While 49 states have laws or judicial rulings that provide some protection to journalists, there is no federal law or Supreme Court precedent that safeguards the reporter’s right to maintain the confidentiality of his source. Post-publication sanctions on reporters could discourage them from writing about high-profile criminal cases. Some argue that gag orders on court officials have become an indirect way of preventing media coverage of criminal cases.

Apart from arguably indirect press restrictions, challenges to the legitimacy of press coverage of criminal cases are common. Despite 40 years of presumptive constitutionality, defendants still appeal convictions on claims of juror bias due to media coverage.

In 2010, for example, former Enron executive Jeffrey Skilling’s appeal based on juror bias made it all the way to the U.S. Supreme Court. In September 2012, convicted murderer and kidnapper Christian Karl Gerhartsreiter, known under his alias “Clark Rockfeller,” appealed his conviction in a Massachusetts appeals court; his appeal was based upon juror bias due to pretrial publicity. A district attorney challenged Quincy-based group Open Court’s freedom to film proceedings in Quincy District Court this past summer.

Even though pretrial publicity enjoys constitutional protection, it remains an issue today, through both challenges from defendants and indirect restriction of press freedom in gag orders of involved parties. Exposure to pretrial publicity can prejudice jurors. On the other hand, the cost of restricting press freedom could outweigh any benefit to society through protecting the accused.

What, then, is the resolution to this struggle?

That’s the thing I’m aiming to find out over the course of the Spring 2013 semester. It’s the main point of my directed study project under the supervision of Northeastern Assistant Professor of Journalism Dan Kennedy.

For now, let’s say the jury’s out on this one.