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Massachusetts electronic access in courts rule is in the “forefront” of state courts, SJC Public Information Officer Joan Kenney said to me this past February. The state has a history of progressive thinking when it comes to technology use in courtrooms, Neil Ungerleider has said. The state was one of the first to adopt a rule allowing use of cameras – the original Rule 1:19 made it on the books in the 1980s. While most other state courts do allow camera usage, many do not permit use of electronic devices for reporting.
“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.
Meanwhile, lawyer and blogger Robert Ambrogi, who researched equivalent or similar technological access rules of other state judiciaries while on the Rule 1:19 Subcommittee, found that most states do not extend to the lengths the new Massachusetts rule does. Massachusetts is one of the few states that allow two video cameras in a courtroom at a time, and one of the few that specifically grants that permission to citizen journalists in the language of the court rule.
Massachusetts is ahead of the federal courts in terms of electronic access. Federal courts do not allow the use of cameras except in specific federal district courts that are part of a pilot program similar to OpenCourt’s project in Quincy District Court. Cameras have never been allowed in the U.S. Supreme Court.
“The federal court system is woefully behind the times in terms of allowing cameras in the courtrooms,” Ambrogi said. “We’re still guided by a U.S. Supreme Court that has said not over their dead bodies will they ever let cameras in the Supreme Court. So I think Massachusetts is ahead on this.”
Other state judiciaries’ rules on cameras in courtrooms vary widely. For example, Oklahoma, which previously banned cameras in its courtrooms in its Code of Judicial Conduct, superseded the relevant rule in April 2011. That state now has no formal rules on the books at all regarding camera usage in courtrooms.
On the opposite end of the spectrum is Wisconsin, which permits three television and three still camera operators to be in courts with approval from the judge. Mississippi is also highly permissive when it comes to camera use in state courts; individual use of one television camera, one video recorder, one audio recording system and one still camera is permitted in the same courtroom given at least two days notice to the presiding judge.
Only a few states explicitly permit use of electronic devices, and even then, intended use of the device, whether for note taking or reporting, makes a difference in the permissibility of its use. Reporters in Nevada, for example, can freely use electronic devices for note taking, but need to get judge approval before using those same devices to live blog or broadcast court proceedings. In other states, reporters’ use of electronic devices is limited to cameras and audio recorders used for note taking.
Thirty-five states explicitly permit use of cameras in courtrooms, while 14 other states partially allow camera use depending upon the circumstances. In the majority of states that explicitly permit camera usage, only one videographer and one photographer can be in the courtroom at any time. (For more specifics, see the Radio Television Digital News Association’s State-by-State Guide).
The District of Columbia is the lone region of the United States that outright bans camera usage in the courtrooms in its jurisdiction. Thirty-five states allow some form of audio or video webcast from the court as well, though those 35 states are not all the same 35 that explicitly permit use of cameras; some states that only allow camera use in specific circumstances have also allowed webcasts under special circumstances.
While Joan Kenney, the SJC’s public information officer, has said that Rule 1:19 is still a “work in progress,” Massachusetts is leaps and bounds ahead of other states and sets a strong example of how a state judiciary might handle electronic access to the courtroom. Considering the successes of the OpenCourt project in particular while it lasted, regular live streaming and blogging, citizen journalism reporting and camera usage in courtrooms can become the norm of courtrooms in Massachusetts.
“It [OpenCourt] was a pilot project scheduled to last for a particular period of time, and intended to explore different issues that came up in the context of introducing full-time video recording into courtrooms,” said Jeff Hermes, director of the Digital Media Law Project. “In that regard, I think it was a tremendous success,”
While Massachusetts might lag behind some states in terms of access to the courts, the new updates to Rule 1:19 have ultimately been a victory for Massachusetts press freedom.
“I think the SJC, that court, started to come to the realization that the rules on technology in the courts were outmoded if not even nonexistent for the most part,” said Ambrogi of the Rule 1:19 updates. “I think this was seen as an opportunity to modernize the rules to apply to the kind of technology that reporters are using today. I think it’s also an attempt to recognize that even the definition of a reporter is changing and to acknowledge the idea that … bloggers and citizen journalists can also be members of the news media as well.”
This is somewhat old news, but OpenCourt, a pilot cameras in the courtroom project based out of Quincy District Court, has shut down its operations in the courthouse because the funding from the 2010 Knight News Challenge grant has run out.
I previously covered OpenCourt’s beginnings and some of its legal challenges, but at the time of that post, the project’s executive director, John Davidow, told me that the Quincy part of the project was merely on hiatus, and that he hoped it would expand into other courtrooms. He mentioned he and other OpenCourt staffers were working on other projects under the OpenCourt umbrella, tracking certain kinds of cases, for instance. Davidow told Robert Ambrogi, a lawyer who writes the LawSites blog, that, in conjunction with the Cyberlaw Clinic at Harvard University’s Berkman Center for Internet and Society, he will write a report about the OpenCourt Quincy experiment that will later be published in the National Law Review.
Through the course of researching OpenCourt, I managed to dig up a lot about Commonwealth v. Barnes, a 2011 case that revolved around OpenCourt’s ability to post recorded footage to its online archives. Though the project is pulling out of Quincy District Court, OpenCourt’s legacy will last in the Barnes case, which legitimizes Rule 1:19 and the ability of an independent journalistic organization to publish however it wants footage of judicial proceedings in open court it had permission to record.
Specifically in the Barnes case, the District Attorney’s office and a group of public defenders filed petitions with the SJC requesting redaction of the name of a minor kidnapping victim in one case and the full video recordings of a defendant’s arraignment and later hearing on a motion in a second case. Counsel for OpenCourt’s opponents argued that OpenCourt operated only with Quincy District Court’s permission, and that its operation was so tied to the courthouse that videotapes constituted court documents, not documents belonging to a separate journalistic entity, and therefore, requesting redaction could not constitute prior restraint.
The SJC ruled 5-0 for OpenCourt (two justices on the judiciary-media committee recused themselves). The court declared OpenCourt an independent journalistic organization that deserved all the First Amendment protections normal news organizations enjoy. The SJC explicitly declared that the any court banning OpenCourt from publishing proceedings conducted in open court constituted prior restraint. Furthermore, wrote Justice Brotsford for the court, “Once a proceeding is recorded, the ability of the judge or an appellate court to control what media organizations do with the recording is highly constrained. Thus, even if an appellate court should conclude that there was an abuse of discretion in permitting the proceeding to be recorded, there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”
The court allowed OpenCourt to continue its operations given that the SJC’s judiciary-media committee would develop guidelines for the project that OpenCourt would abide by in the future. Later on, OpenCourt decided to wait two business days before posting video recordings of proceedings to have time to redact names of minors and sexual assault victims and to allow anyone to request a video not be published. Even after the footage has been posted, OpenCourt would take it down if someone flagged the video and explained the issue.
The project’s legacy as a pilot cameras in the court project that pushed the boundaries of the newly updated Rule 1:19 and survived two separate legal challenges that made it to the state’s highest court will survive as an example of Massachusetts’s openness to technology use in the courtroom. To Davidow, the greatest impact of OpenCourt was its ability to test the limits of Rule 1:19 while the changes to the rule were implemented.
“The new Rule 1:19 … was rewritten almost on a parallel track while Open Court was going. It allowed for a non-mainstream videographer in the courtroom. It talks about a number of the issues that came up. It also talked about what would be required of someone who did come in and cover the courts,” Davidow said to me in February. “We pushed that it would be a very low bar to get into the courts, almost like the registration of a new piece of software. So we offered a real-world example of what could be when 1:19 was rewritten … and then further clarif[ied] what rights the media had in terms of prior restraint.”
Jeff Hermes, the director of the Digital Media Law Project, a part of Harvard’s Berkman Center (as is the Cyberlaw Clinic Davidow is producing his report about OpenCourt with), agrees with Davidow’s assessment. In an interview earlier this week, he said that OpenCourt accomplished what it set out to do in the fixed period of time it ran.
“I think it was a tremendous success,” Hermes said. “It very clearly brought to the front tensions between the different parties in the court in terms of the creation of a video recording which would be in the hands of the press or in the hands of others that would not be subject to court orders barring publication of information.”
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.
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.”