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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.”
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.”