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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.”
Following the rulings in Nebraska Press Association v. Stuart and other prior restraint cases, it’s generally understood that courts almost never uphold requests for halts to publication, even if it means protecting a fundamental right, such as a defendant’s right to a fair trial. The Supreme Court has endorsed in Sheppard v. Maxwell (and later in Nebraska Press Association) gag orders on trial participants as a viable alternative to gag orders of the press.
Theoretically, punishing journalists or private citizens engaging in speech ahead of the distribution of their message is the “worst infringement” of the First Amendment right to free expression, the Supreme Court said in Nebraska Press Association. But despite this practice of granting free expression extreme protection, courts have no issue punishing speech or publication after it occurs. This can cause journalists to self-censor and can indirectly limit the freedom of the press.
Without a federally recognized reporter’s privilege, journalists can face civil contempt citations and other sanctions for declining to disclose an anonymous source’s identity. A judge could issue a gag order on trial participants, such as involved attorneys, who would otherwise provide essential information about a trial or court proceeding to reporters. A reporter might get an attorney to speak on the condition of anonymity, and then the judge could demand the reporter give up his source so that source can be punished for violating the original order.
While the press is free to write about a trial and to use anonymous sources, judges can hold journalists in contempt for not disclosing the identity of an information leaker. It could be argued that gag orders on involved parties are equivalent to gag orders on the press. The only distinction is that the government’s burden for proving necessity of a gag order on involved parties is much lighter than the burden for proving necessity of a gag order on the press. By circumventing the press gag order and forbidding involved parties from disclosing information about proceedings, courts can produce the same end result while seemingly upholding the law and not violating any First Amendment protections.
According to the Reporters Committee for the Freedom of the Press (RCFP) First Circuit Open Courts Compendium, there are three requirements for the issuance of a gag order on involved parties: “(1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources.”
Meanwhile, under the Supreme Court decision CBS Inc. v. Davis, gag orders on the press “may be used only in ‘exceptional cases’ where ‘the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.’”
These standards are clearly very different; it’s much easier for the government to get a gag order on involved parties than on the press. Unlike the test for a gag order on trial participants, the government has a “heavy burden” to prove the necessity of any kind of prior restraint of the press, the Supreme Court said in a per curiam opinion in New York Times Co. v. United States.
Even if a judge hasn’t issued a gag order, state bar guidelines can still legally bind lawyers involved in a case and can curtail a lawyer’s freedom to speak to the press about a case already open to the public, the Supreme Court ruled in 1991 in Gentile v. State Bar of Nevada. Lawyers’ speech doesn’t carry the normal, strong First Amendment protection test of “clear and present danger” of imminent harm or prejudice affecting a defendant.
Instead, the court noted that a “substantial likelihood of material prejudice” test was enough to protect a lawyer’s speech about a case he is directly involved in. The court struck down the specific Nevada Bar guideline for vagueness, but the ruling in favor of Gentile didn’t change the fact that lawyers’ speech, especially addressed to the press, receives less protection than normal speech.
Gag orders can be necessary to protect a defendant’s right to a fair trial. It is important to note that while press freedom is a constitutionally protected right, so is the right to a fair trial. They are equally important rights with equal protections. However, the potential for harm to the defendant is much greater than that to the press. While the press may not be able to print certain facts about a story if a court abridges the First Amendment with a gag order, a defendant risks loss of money, liberty or even his life if publicity prejudices the jurors at his trial.
One of the four main tenets of the Society of Professional Journalists Code of Ethics is to “minimize the harm.” The code reads: “Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect … [They should] [b]alance a criminal suspect’s fair trial rights with the public’s right to be informed.”