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Updates to Mass. electronic court access rule make permissibility of tech usage uniform

It’s not the inclusion of citizen journalists or the expansion of permissible technology usage in courtrooms for reporting that makes the recent updates to Supreme Judicial Court (SJC) Rule 1:19 so worthwhile. The most important thing is the existence of a rule about technology usage itself, said judiciary-media committee member Bob Ambrogi.

“There really hadn’t been [a set rule] before, and so what that meant was that, from courtroom to courtroom, from judge to judge, you’d get different standards being applied,” he said. “It wasn’t that you couldn’t do this stuff before, but there was no easy way to know how to do it, and the judges would have their own standards on this.”

A lawyer and blogger, Ambrogi has been a member of the judiciary-media committee for about 9 years. He is also the executive director of the Massachusetts Newspaper Publishers Association, and was on the subcommittee that researched and proposed potential updates to Rule 1:19.

The SJC approached the judiciary-media committee to explore possible changes to the rule after many citizen journalists inquired about technology usage in the courtroom, Ambrogi said.

“The SJC started to come to the realization that the rules on technology in the courts were outmoded if not even nonexistent for the most part. Although there was a rule on camera in the courts, it didn’t really address newer technologies that were being used in the courts,” he said. “So 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 the news media aren’t just necessarily people who work for formal news organizations like the papers and television stations, but bloggers and citizen journalists can also be members of the news media as well and should be covered under the rule.”

While subcommittee members eventually agreed on the include of citizen journalists, some expressed concerns that allowing anyone to use cameras in the courts might make it easier for gang members to identify and intimidate witnesses, Ambrogi said.

“Judges are very cognizant of that,” he said. “I think that’s why to some extent the concern with this rule is it’s really much less about the mainstream media than it is about the fact that the definition of the media is changing so much that if you’re going to allow wider use of technology and photography in the courtroom, you have to put some constraints around it to prevent the possibility of abuse by people who are not really journalists but who are there for some other reason.”

The solution came in the form of a registration system: If a journalist fills out a registration form and submits it to the SJC’s public information office, then that journalist can bring a camera or electronic device into a courtroom as long as he or she shows an acknowledgment form upon entering the courthouse. The registration system allows the SJC to keep track of everyone who uses cameras and electronic devices in Massachusetts courtrooms without requiring journalists to have professional credentials to gain electronic access.

“Journalists in general have a strong resistance to any kind of formal credentialing system in the sense that no journalist wants the government deciding who is a journalist and who has the right to report the news, and the First Amendment treats everybody equally in terms of their ability to cover what’s going on in the courts,” Ambrogi said. “There’s not even a distinction between journalists and average citizens. Anywhere a journalist has access, it’s the same access any citizen has to the courts and to report on what’s going on in the courts.”

But judges also have to address concerns about potential harm to testifying witnesses and protecting defendants’ rights, he said.

“At the same time, under this rule, the court system really felt it needed to have control over the use of technology because technology is something that can be abused in the courtroom in some ways,” he said.

The rule forms a balancing approach between the two concerns. The updates were “probably overdue,” Ambrogi said, and he’s not sure if they go far enough in granting liberty to journalists. However, he also noted that Massachusetts courts are quite progressive in granting electronic courtroom access.

“In the process of drafting this rule, I did personally look at what other states were doing and try to find examples from other states of rules that they had drafted to speak to this issue of technology and bloggers and whatnot in the courtroom, and very few states have really done it,” he said. “Of course the federal court system is woefully behind the times in terms of allowing cameras in the courtrooms. 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.”

In his capacity as the MNPA executive director, he brings concerns of journalists in the field to the judiciary-media committee. He said he hasn’t heard of any issues with the rule since it went into effect last September.

“I think it’s going well,” he said. “Time will tell.”

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Mass. court rule lets traditional, citizen journalists use technology in courts

Last September the Massachusetts Supreme Judicial Court (SJC) updated its rule on camera usage in courtrooms, expanding the scope to citizen journalists and allowing the use of new technology for reporting purposes.

“I think they’re very timely,” SJC Public Information Officer Joan Kenney said of the changes. “I think we’re in the forefront of state courts throughout the country who are implementing new rules.”

Much of Rule 1:19 remains the same, Kenney said. But the changes now allow any professional or citizen journalist who has registered with the public information office and received permission from the presiding judge to record judicial proceedings. It also permits use of electronic devices such as smart phones, laptops and tablets, if it is not disruptive. This means journalists can now live blog a trial or hearing, for instance.

About 75 media organizations and 15 news media individuals have registered with the court. Registration is a simple process requiring an applicant to read Rule 1:19, fill out a form and submit it to the public information office.

The number of registered citizen journalists seems to be consistently lower than the number of news organizations, Kenney said.

“That number will probably grow over time,” she said.

Any member of the public is welcome to witness a judicial proceeding and take notes with pen and paper, but use of technology is limited to news media, which the new rule defines 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.”

Kenney noted that the public information office does not check applicants’ credentials, but merely sends an acknowledgment that an applicant verified his or her qualification as a member of the news media on the form. The process is more of an “honor system,” she said.

“The public information office is not in the business of credentialing the journalist. The journalist decides himself whether he or she fits the definition,” Kenney said. “There had been some discussion at our meetings – this is the judiciary-media committee – about whether it should be a registration system or a credentialing system, and it was decided that it should be a registration system, not credentialing.”

The change came as a result of increasing inquiries from both judges and journalists about camera usage in courtrooms, Kenney said.

“Judges were getting requests from nontraditional media types, and citizen journalists were also asking whether they could bring in iPads and laptops, things like that to use, into the courtroom instead of just paper and pen,” Kenney said. “The court recognized that it was time to review the rule.”

The SJC’s judiciary-media committee formed a subcommittee to explore possible revisions to the old rule, which dated back to the 1980s, and recommend what should be changed, if any, Kenney said.

The SJC later updated Rule 1:19 based on the subcommittee’s recommendations, and it went into effect on Sept. 17 of last year. The SJC is still working out the kinks of the rule, though, Kenney said.

“It is new for everyone,” she said. “It’s new for our judges, new for our clerks, new for our court officers and journalists.”

Kenney said despite the kinks in the system, Massachusetts courts are innovators in the use of technology in the courtroom.

“I know many other state judiciaries are considering making some of these changes, and maybe a few of them have, but I think we are one of the leaders in terms of reviewing our rules, updating our rules, and making them contemporary with what’s happening in society,” she said. “The rule was implemented in September. We’re taking a look at how it’s being implemented, looking at what issues that might arise from this, and it’s still very much a work in progress.”

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.”